The Systematic Mechanism of Warfare

A GUIDE TO THE SYSTEMATIC MECHANISM OF WARFARE 1
UNIT: I
PRELIMINARY MATTERS
What is International Humanitarian Law?
The international humanitarian law (IHL) is a set of rules

which seeks, for humanitarian reasons, to limit the effects of
armed conflict. It protects persons who are not or are no
longer participating in the hostilities and restricts the means
and methods of warfare. In other words, IHL is a set of rules
which regulates the conduct of war and thereby protecting
persons who are not or no longer participating in hostilities.
This is achieved by restricting and regulating the means and
methods of warfare available to the combatants. It is
important to
note that IHL is a les specialis which starts applying when

the conflict starts and cease to apply when the conflict ends.
The IHL is also known as the law of war or the law of armed
conflict. International law may be very broadly defined as
the body of law that governs the legal relations between or
among members of the international community- States and
international organizations created by States. International
law retains a structure which is fundamentally different from
the municipal law or national legal order of a State
concerned. The major difference is that international law is
a consent-based law agreed upon by concerned States,
wherein municipal law is made by the governments of
concerned States and is made obligatory upon its citizens.
Hence international law is binding upon the States only if
they agree upon them, except in cases of Customary
International Law and Jus Cogens.
IHL is a part of the international law, which has been agreed

upon between States to reduce the sufferings during an armed
conflict. Like all other streams of international law, IHL is also
contained in agreements between States – treaties or conventions
–, customary rules, which consist of State practice considered by
them as legally binding, and general principles. Hence IHL
exemplifies all the weakness and at the same time the specificity
of international law. It was born as the law regulating belligerent
inter-state relations, even when the very existence of a State is at
stake. IHL, distinct from humanitarian morality or the simple
dictates of public conscience, cannot exist except as a branch of
international law. It is also important for the international law to
have rules concerning armed conflicts.
International law is the lex generalis (general law) and IHL the
lex specialis (special law). International law is therefore
applicable as a complement to IHL. The rules of international
law governing the responsibility of States are a complement to
the specific rules on individual criminal responsibility under
IHL. Hence the relationship between IHL and international law
is symbiotic and inevitable to exclude each other.
DIFFERENCES BETWEEN HUMAN RIGHTS AND IHL
Both human rights law and IHL technically apply in armed

conflict but they are designed to apply in different kinds of
situations. Primarily, human rights law is designed to govern in
peacetime whereas IHL, as we have seen earlier, only applies in
situations of armed conflict. It is also interesting to note that both
streams developed independently of each other. Even though,
human rights law is applicable in times of armed conflict; some
of its rules can be suspended by the State in case of emergency
situations under Article 4 of the International Covenant on Civil
and Political Rights.
However, such suspension must be proportionate to the crisis;

they shall not involve discrimination; they must be consistent
with other rules of international law, including IHL. Whereas
protections under IHL can never be derogated from and apply
equally to all parties to the conflict. Further, unlike IHL, human
rights law does not directly bind non-State armed groups or
rebels. Human rights obligations are primarily the responsibility
of States, while IHL binds all parties to an armed conflict,
including armed groups that do not form part of the armed forces
of a State, such as rebel groups, in a situation of internal armed

conflict.
EMERGENCE OF INTERNATIONAL CRIMINAL LAW

AND INTERRELATIONSHIPS
International criminal law provides a means for the enforcement

of IHL in addition to seeking to repress widespread violation of
human rights and mass atrocity. Originally developed as a means
to repress piracy in high seas, international criminal law was
started being used for prosecuting violations of laws and
customs of war at the international level from the World War I
onwards. The victorious side made a futile attempt through the
Treaty of Versailles (with Germany) and the Treaty of Sèvres
(with Turkey) for war crimes trials as the aftermath of World
War I. The allied forces had established more successful
international criminal trials for the atrocities committed during
the World War II. The famous Nuremberg and Tokyo trials, as
they were known for the International Military tribunal for
Europe and International Military Tribunal for the Far East, are
considered to be the first modern trials under international
criminal law. Even though widely considered as victims- justice
courts, they laid down many landmark principles which are still
followed in International criminal law.
Subsequently, in 1993, the UN Security Council, by Resolution

827, set up an International Criminal Tribunal for the Former
Yugoslavia. That tribunal was established to deal with serious
international crimes committed since 1991 on the territory of the
former Yugloslavia and is based in The Hague. In 1994, the UN
Security Council, by Resolution 955, set up an International

Criminal Tribunal in Arusha, Tanzania, to try crimes committed
during the genocide in Rwanda in which nearly a million people
died. In addition to these international criminal tribunals, there
are a number of ‘internationalized’, ‘mixed’ or ‘hybrid’
tribunals. These are tribunals established to prosecute those who
are alleged to have committed international crimes. The
tribunals are part international and part domestic. Examples for
these tribunals are the Special Court for Sierra Leone:
established by agreement between the United Nations and the
Government of Sierra Leone to prosecute international and
national crimes committed in the war in that country, the
Extraordinary Chambers in the courts of Cambodia: established
to deal with the crimes against humanity committed in
Cambodia by the Khmer Rouge in the 1970s in which about two
million people are estimated to have died.
The latest development in the field of international criminal law

is the constitution of a permanent International Criminal Court
at The Hague in The Netherlands. The court has jurisdiction to
try four crimes, viz., genocide (defined in article 6), crimes
against humanity(defined in article 7), war crimes (defined in
article 8), and crimes of aggression (defined in article 8 bis*).As
IHL is a body of law meant for the protection of victims of armed
conflicts, its application depends on the classification of armed
conflicts. For this reason, armed conflicts have to be classified
as international armed conflicts (IAC), non-international armed
conflicts (NIAC), and internal disturbances and tensions.
International criminal law and IHL share common roots,
especially about serious violations of IHL, which form the basis
of offences of war crimes under international criminal law.
Hence war crimes in international criminal law are also

classified on the basis of armed conflicts.
International criminal law and human rights also share some

commonalities and common roots. Some international criminal
law crimes especially genocide and crimes against humanity
owe their origin to human rights law. The ad hoc tribunals
(International Criminal Tribunals for Yugoslavia and Rwanda)
had widely used instruments and practices developed in human
rights law in its jurisprudence. Also, in the international criminal
procedure, many of the due process protections accorded to
defendants originate in human rights law. However, both are not
the same, for example human rights obligations are imposed on
States while international criminal law deals primarily with
individual criminal responsibility.
The Rome Statute of the International Criminal Court has taken

the grave breaches of IHL to an advanced level by always
including the violations of war crimes during a NIAC and human
rights violations under its jurisdiction irrespective of the
existence of armed conflict.
SOURCES OF IHL
Like the other streams of international law, IHL also finds its
sources in treaties, customary international law, the general
principles of law recognized by civilized nations. The judicial
decisions, and the teachings of the most highly qualified
publicists of the various nations, forms subsidiary means for the
determination of rules of law under Article 38 of International
Court of Justice Statute.
TREATIES
Historically, IHL has its sources in bilateral treaties,

especially in cases of treatment and exchange of prisoners of
war. The systematic codification and progressive
development of IHL at international law started much earlier
than many other international law branches. The development
and codifications mostly happened after major wars, taking
into account of shortcomings and new development in
military technologies and practices. Probably this is why IHL
is dubbed as “one war behind”. Nevertheless, because of this
systematic codification and progressive approach to learn
from its failures, has made IHL one of the most codified
branches of international law. Moreover, IHL treaties are also
considered to be the most acceded treaties among other
branches of international law. For example, the Geneva
Conventions of 1949 (but not the Additional Protocols to
them) are almost universal with the consensus of around 195
countries. Because of the universal acceptance of Geneva
Conventions, it acquired the status of customary international
law. It is to be understood that, treaties normally bind those
states that have specifically consented to them and become
parties to them.
The most important treaties regulating the actions of

participants in armed conflicts are:
• The Hague Conventions of 1899 & 1907 and

in particular the Regulations attached to
Hague Convention IV 1907 on Laws and
Customs of War on Land;

• The four Geneva Conventions of 1949; and
• Additional Protocols I, II (1977), and III (2005) to

the 1949 Geneva Conventions.
CUSTOMARY INTERNATIONAL LAW
Customary international law refers to unwritten rules of law

derived from the practice or conduct of states. This is a body
of rules dealing with armed conflict which is derived from
state practice is otherwise known as the customs of war has
its origin in the customary practices of the armies as they
developed over the ages and on all continents. As the treaties
did not codify all aspects of custom, the importance of
customary international law is reaffirmed in the “Martens
Clause” and later in the Additional Protocol I to the Geneva
Conventions. Martens Clause read as follows:
“ Until a more complete code of the laws of war is issued, the High Contracting
Parties think it
(Hague II), 29 July 1899. ”
The Statute of the International Court of Justice describes

customary international law as “a general practice accepted as
law”. The importance of customary International law is that
non-contracting States will also be bound by the norms in the
treaty, not because theyform part of a treaty but because it is
customary international law applicable universally. The
existence of a rule of customary international law requires the
presence of two essential elements, viz. state practice (usus) and
such practice are followed as a matter of law (opinion juris sive
necessitatis).
State practice may consist of physical and verbal acts of the State.
Abstention from certainconduct is also noted when relevant.
However, the practice should consist of official practice. The
practice of the executive, legislative and judicial branches of the
governmentmay contribute to the formation of the customary
international law. Acts need to be communicated at least to
one other state or relevant international organization.

International organizations have international legal personality
and can participate in international relations in their capacity,
independently of their member States, hence theirpractices can
contribute towards the formation of the customary international
law. Further to establish a rule of customary international law,
the state practices have to be virtually uniform, extensive and
representative. However, no specific period is required tosatisfy
this criterion. Opinion juris sive necessitatis is the second
requirement for proving the existence of a rule of customary
international law. This relates to the need for the practice to be
carried out as a legal requirement. In the words of
International Court of Justice (ICJ), opinion juris means “a
belief that this practice is rendered obligatory by the existence of
a rule of law requiring it”. Here it means that the requirement
is a legal requirement,rather than one reflecting courtesy or
mere comity. The International Committee of the Red Cross
(ICRC) conducted an extensive study ofcustomary IHL, and
published it in 2005-06 providing an extensive analysis of
state practice in the area. Many of the rules contained in the
IHL treaties have also becomerules of customary international
law. As such they apply to all States including those not parties
to the relevant treaty.
JUDICIAL DECISIONS
The rules regulating armed conflict are also to be found in

judicial decisions considering these issues. For example,
prosecutions for war crimes before either national or
international tribunals will usually raise and decide issues
concerning the laws of war. Thus, the war crimes trials held after
World War II and the case law of the International Criminal

Court as well as the ad hoc International Criminal Tribunals
for the former Yugoslavia (ICTY) and for Rwanda (ICTR)
address issues regarding the laws of war. The decisions by
International Court of Justice on IHL related matters are also
of great importance as a source for IHL.
Examples of national judicial decisions and International
Court’s decisions on IHL:
• Military and Paramilitary Activities in and against

Nicaragua by ICJ.
• Tadic decision by ICTY appeals chamber.
• In 2006, the US Supreme Court decided on the

legality, under IHL, of the Military
Commissions established to prosecute persons
detained in GuantanamoBay.
BASIC PRINCIPLES OF IHL
The entire IHL is based on and revolve around some core

fundamental principles. Those principles of IHL are:
1. Principle of Humanity.
2. Principle of distinction.
3. Principle of Proportionality.
4. Principle of Military Necessity.
5. Principle of Precaution.
6. Principle of Good Faith.
All of these principles are very essence of IHL and are
interconnected with one another. These principles justify and
back on another when it comes to the scenario of armed conflict.
All the laws of war are to be regulated in conformity with these
fundamental principles of IHL.
I. PRINCIPLE OF HUMANITY:
Principle of Humanity is the first most important principle of
IHL and can be considered as the main objective and purpose of
IHL. This principle rejects the idea that “everything is fair in
love and war”. Principle of humanity sets the balanced
regulations between horrors of war and the humanity. Parties to
an armed conflict should respect and should lose the site of
humanity during their adverse conduct in armed. IHL implies
that even the enemy should be treated humanely if captured.
Since the objective of war is to destroy the enemy state, it is
legitimate to kill but there are some parameters laid down by

humanity, when the enemy lays down their weapon and
surrender, they cease to be enemy and are mere men whose lives
are illegitimate to be taken and this is what humanity is about.
The preservation of humanity is of the primary importance of
IHL and every Convention and every provision of IHL is solely
based on humanity. The 1st Geneva Convention talks about
wounded and sick in duration of an armed conflict that the
wounded and sick are to be treated with care and should not be
subject to any biological experiments, torture, inhumane and are
not to murdered or exterminated in any circumstances, They are
to be treated with medical care and assistance1 regardless of
whether they are the members of the armed forces of adverse
party or whether they are members of militias or voluntary corps
forming the armed forces of adverse party or other persons
taking part in hostilities or providing services in the armed
conflict such as civilians, supply contractors, pilot or service
units2 if they fall under the hands of adverse party and become
P.O.Ws3. There should be immediate measures taken for the
constant search of casualties and collecting the wounded to
provide them with proper medical assistance and care4. Same
instructions have been laid down in the Chapter 2 of the 2nd
Geneva Convention in context of wounded and sick shipwrecks
and 3rd GC in context of P.O.Ws that they should be treated
humanely, they are not to be murdered, they are not to be subject
1
Art. 12 GC 1
2
Art. 13 of GC 1
3
Art. 14 of GC 1
4
Art. 15 of GC 1
to the torture and biological experiments or physical mutation,5

Their dignity is to be respected and protected regardless of their
sex that whether they are women6. In case of their sate of heath
they should be provided with medical assistance7. P.O.Ws are to
be provided with quarters,8 food 9 and clothing.10 There should
be regular medical inspection and freedom for their religious
activities. 4th Geneva Convention tells us to about the
responsibilities of parties to the armed conflict with respect to
the protection of civilians in an armed conflict and in case of
their detention. All of these provisions of IHL are totally based
on the principle of humanity and are to be followed and
respected.
Nuremberg Trails against Nazi Leaders 145-48:
After the 2nd world war the Nazi leaders of Germany were
prosecuted in the Nuremburg trails for the murder of jews and
romani people on the bases of racism, killing of P.O.Ws and
many other charges of war crime, genocide, crime against
humanity. During these trials from 1945-1948 some important
general principles of IHL were discussed and laid which were
based on principle of humanity such as prohibition of
unnecessary suffering, prohibition of indiscriminate warfare,
respect of humanity, prohibition on poisoning of water and use
of muax superflux. And it was established that “all the general
5
Art. 13 of GC 3
6
Art. 14 of GC 3
7
Art. 15 of GC 3
8
Art. 25 of GC 3
9
Art. 26 of GC 3
10
Art. 27 of GC 3
principles of IHL that are important and recognized are

elementary consideration of humanity”.11
Prosecutor v Kupreskic case:
In this Case the defendants were charged for persecution of

Bosnian Muslims inhabitants by organizing attacks on villagers
from the area and detention, expulsion, murder, and burning
those Bosnian Muslims along with their houses while they
remained inside. Defendants were charged for violation of
customs of war and crimes against humanity. In this case an
important interpretation regarding to humanity was made that
sometimes the act of an individual may not be inhumane but their
consequences may offend the humanity in such way that they
may be termed as inhumane and are against the principle of
humanity.12
There are some rules that are established from the customs of
war and human conscience and are derived from the principle of
humanity13 as established in Marten Clause, these clause were
proposed by a Russian delegate in the peace conference 1899
and now serves as the preamble of 2nd Hague Convention of
1899 and 4th Hague convention of 1907 and is also part of main
IHL conventions. This clause indicates that not everything
which is not prohibited is lawful in war, belligerent act must be
inconformity with the principle of humanity and protection of
11
Nuremburg trails against Nazi leaders 1945-1948
12
Prosecutor v Kupreskic
13
Marten Clause
war victims cannot be seen by pure positivist approach. If we go

back to the primitive time there were basic rule of war that
women and children will not be subject to the attack during war
and this rule was found on the common human conscience and
sense of humanity that it is not humane to attack women and
children during the war, this rule has been ratified in the AP 1 of
GC that during an armed conflict there are to be measures taken
to ensure the protection of women against rape, forceful
prostitution, plus care for pregnant woman14 and in case of under
aged children they are to be protected against forced labor,
participation in armed forces and other indecent assaults.15
In case, if there are some grey areas not covered by the

convention still the matter and the situation will be judged on the
principle of humanity16 and all the parties to the armed conflict
shall regulate their conduct in accordance with the principle of
humanity17. Principle of humanity considers it humane and
prohibits the use of poison18 and any poisonous weapon as it will
case indiscriminate damage to civilians, plus use of muax
superflux is also considered unlawful as it too is an
indiscriminate means and method and causes unnecessary
suffering to the combatants and the civilians as well.19
14
Art. 76 of AP 1
15
Art. 77 of AP 1
16
Common, Art. 1 of AP of GC
17
Art. 63 of GC 1, 62 of GC 2, 142 of GC 3 and 158 of GC 4
18
Hague Convention 1899 regulations
19
ICRC Draft
-US Army field manual 27-10, para. 3
-Nuremburg trails
The Nuclear Weapons Convention Case, ICJ:
ICJ in its Advisory Opinion on legality of the threat or use of the

nuclear weapon involved an extensive analysis of laws of armed
conflict. The resulting opinion made considerable references to
the Marten Clause and humanity, revealing a number of possible
interpretations. The opinion itself still did not provide the clear
understanding of the clause. The court held an opinion to
prohibit such weapon which violates the principle of humanity
and cause indiscriminate effect on civilians and combatants as
well.20
Thus the entire IHL revolves around this important principle. It

is all about protecting human lives, reducing human suffering,
preservation of human dignity and respect of human sentiments
in context of religion and culture.
II. PRINCIPLE OF DISTINCTION:

Principle of distinction is all about distinguishing. It’s the
fundamental principle that parties to an armed conflict
should always distinguish between combatants and civilians,
military objectives and civilian objects and means use of
means and methods of warfare. IHL does not always
obligate the parties to distinguish but also prohibits
distinguishing in case of adverse distinction. The principle
20
Nuclear weapon case of ICJ
of distinction provides some absolute exceptions in case of

the attack. Those exceptions are:
EXCEPTIONS:
a. Civilians ( not taking part in hostilities)

b. P.O.Ws
c. Detainees
d. Hors de Combat
e. Wounded and sick
f. Shipwrecks
g. Surrenders
h. Medical Personnel
i. Chaplains
ADVERSE DISTINCTION:
What the concept of non-discrimination is in the regime of

human rights, in IHL prevails as the prohibition of adverse
distinction. This concept of IHL prohibits parties to an
armed conflict to discriminate on the bases of race, gender,
nationality, religious beliefs, political opinion or any other
related criteria in treatment of P.O.Ws, detainees, civilians
and hors de combat persons.21 The distinction is only
permissible on medical grounds if someone is in need of
urgent medical care, then that person should be given the
priority in the treatment only on the medical grounds.22 In
case of P.O.Ws if persons are captured and given the status
of P.O.Ws then all of them are to be treated in the same
21
Art. 9 of AP 1
22
Art. 10 of AP 1
manner regardless of their race, religion, sex and political

opinion, There should be no discrimination in their
treatment23. If someone after being captured is not given the
status and protection of P.O.Ws such spies and mercenaries
then it would not account as adverse distinction. This
concept of distinction is different from the general principle
of distinction and is prohibited in IHL.
DISTINCTION BETWEEN CIVILIANS AND

COMBATANTS, CIVILIAN OBJECTS AND
MILITARY OBJECTIVES:
Principle of distinction obligates the parties to the armed to

all time distinguish between civilians and combatants and
civilian objects and military objective as it is the basic rule
of IHL. This principle is based on general rule of IHL that
civilian objects and civilian population must be protected in
an armed conflict and for ensure such protection they must
be they must be distinguished between combatants and
military objectives24. In the article 48 of AP 1 the word
“respect” implies the concept of sparing persons and objects
concerned and word “protection” implies the act of positive
aid and support25, while the word “operation” used in this
article is used to refer to the military operation and not the
ideological, religious and political movements and
campaign, the meaning operation in this article according to
23
Art. 16 of AP 1
24
Art. 48 of AP 1
25
Cf. commentary on articles mentioned
the dictionary is all the acts and movements related to the

hostilities and undertaken by armed forces26.
DEFINITIONS:
COMBATANT: All the members of armed forces of party

to an armed conflict other than the medical personnel and
chaplain, who directly participate in hostilities and have
right to participate directly in hostilities27. Members of
militias, voluntary corps, resistance movements, members of
regular armed forces and all the other persons who take
weapons and is allowed and recognized by state to
participate in hostilities are also recognized as combatants28.
Mercenaries are not considered as combatants.
CIVILIANS AND CIVILIAN POPULATION: A civilian

is any person who does not belong to the categories of
person directly participating in hostilities and is not a
combatant. If there is a doubt that whether a person is
civilian or not, that person is to be considered and treated as
a civilian, he should not be attacked due to the presence of
doubt until his status has been confirmed. Civilian
population is comprised of all the persons who are civilians
and presence of any individual that does not comes under the
26
Shorter Oxford Dictionary, 1973, p. 1452
27
Art. 43 of AP 1
28
Cameroon’s Instructor Manual 2006.
ambit of civilians does not deprive the civilian population

from its protection and civilian character.29
Prosecutor v Rajko Radulovic case:
The court found out that the defendants ordered and carried
out attacks on civilian population without selecting their
target and violated the principle of distinction during an
armed conflict and occupation which is the basic foundation
of IHL which resulted in deaths of civilian population,
expulsion, terrorism and looting which is unjustified and
unlawful under IHL.30
Inter-American Commission on Human rights in

Argentina case:
In this case court accepted the fact that there are a lot of state
practices which may give little or no guidance on the
interpretation on term “direct participation in hostilities”.
The court held that a person must make a “direct
participation assessment” for the purpose of distinguishing.
Such assessment must be made on a case-by-case basis or
on the basis of general rule that direct participation causes
civilians to loss protection against the attack.31
29
Art. 50 of AP 1
30
Prosecutor v Rajko Radulovic and others
31
Human rights in Argentina, Inter-American human rights court
case
MILITARY OBJECTIVES: The only legitimate target

during an armed conflict to weaken the military forces of
adverse party and to gain military advantage are military
objectives, the definition of military objective is based on
two elements: (1) The nature location and purpose and use
makes great contribution to the military objective. (2) The
total and partial destruction, capture and neutralization of
which give a decisive advantage in terms of military at that
time.32 By ”nature” it means that the building used by armed
forces in their military operations such as buildings
containing weapons, equipment, transport, staff
headquarters, communication centers and all the other
buildings occupied by armed forces. By “location” means
that the object due to their location makes effective
contribution to the military function although it may not be
by nature a military objective such as a bridge or other
construction or site33 which have great importance for
military operations in view of its location and necessary to
be seized or prevented to be seized to gain or maintain a
military advantage. By “purpose and use” means that it may
be used as military objective in future and are anticipated to
cause harm intense damage34 or is presently being used by
armed forces for carrying out their military operations. If a
civilian object is being used for military actions such as a
school or hotels then such civilian objectives will become
32
Art. 52(2) of AP 1
33
Supra, p. 620
34
Australian LOAC manual 2006, p. 5.28
military objectives and legitimate target35, Even if a civilian

aircraft fails to justify its status and involves in military
operations it would be considered as a legitimate target36. In
case of doubt about the civilian objects such as places of
worship, dwellings, homes, schools and hospitals being used
for military purposes it would be presumed that such object
are not being used to contribute on military action due to the
presence of doubt.37 If an establishment or building being
used for both military and civilian purposes and is of great
importance to the civilian population and is of dual status
then the time and place of attack should be taken under
consideration in order to justify the legitimacy of the target
and its consequences on civilian population must be taken in
account.
CIVILIAN OBJECT: Civilian objects are defined under

article 52 of AP 1 as all the objects which are by nature,
location, purpose are not military objectives such objects
include the places of worship, homes, dwellings, schools,
hospitals. Civilian objects are immune from all the attacks
and are not to be used as the military objective for defensive
purposes. Such objects are immune from all the reprisal
attacks as well38. Locations, establishments and sites which
are located in town and villages cities with are situated far
from military forces such as refugee camps, places of ancient
monuments and cultural value39 and medical camps such
35
Australian military manuals
36
Australian military manual, chapter on “Air Operations”
37
Art. 52 of AP 1
38
Art. 52 of AP 1
39
Art. 53 of AP 1
areas are to be considered civilian objects and are immune

under IHL.
Prosecutor v Strugar case:
The court in this case held that attacking civilian objects is

unlawful and is a breach of rules of IHL. It was already ruled
by the chamber in its previous case and upheld by the appeal
chamber under Art 52 of AP 1 referred to in respect of the
count of attacking civilian object is a reaffirmation and
formulation of the rule that has previously attained the status
of customary International law.40
Waizsaecker case:
The court convicted the defendant for the accusations of

seizure and destruction of the cultural property and declared
that cultural property is protected and respected under IHL
as a civilian object and its destruction is on of the grave
breaches of IHL. It is not a legitimate target even if there is
a minor doubt about it being a military object.41
Understanding of above definitions is very important and

without their understandings one cannot follow its
obligations imposed by the principle of distinction
ICRC considers it necessary to confirm the concept of

distinction and for that they purposed that during an armed
40
Prosecutor v Strugar case
41
Waizsaecker case
conflict in the conduct of military operations must

distinguish between, on one hand, persons taking directly
part in military operations and on the other hand, persons
belonging to civilian population42. Real problem arise when
it comes to the term taking “direct part in hostilities”, even
if the civilian or civilian population takes direct part in
hostilities they will lose the protection of their status, while
in case of indirect participation ICRC in their interpretations
in 2005 set some criteria that even legitimated to attack those
who were not taking direct part in hostilities but were
indirectly participating in an armed conflict. It depends on
the chain of events, there should be a causal link between
persons is participating and the damage about to be inflicted
that he is one step away from inflicting the attack and there
should be practical approach to cause damage. If any civilian
does that then he will lose the protection for the duration he
continues to participate in the activities. It is very necessary
to note that this interpretation does not legitimate the attack
on food supply units or weapon supply units if they are
aiding their forces and are civilian this does not means that
the fulfill the criteria set forth by ICRC, thus they are to be
considered protected.43 If a civilian takes direct part in
hostilities, he becomes a lawful target.44 This principle also
prohibits parties to armed conflict from attacking medical
units and the persons with the white flags (ICRC).
42
CE|3b, p. 24-25; see also pp. 11-16
43
ICRC interpretations 2005
44
Art. 51(3) of AP 1
OBLIGATIONS OF COMBATANTS TO DISTINGUISH

THEMSELVES FROM CIVILIANS:
Under the provision of IHL combatants are under obligation

imposed by the principle of distinction to distinguish themselves
from civilian population45 when they are conducting their
military operation. This provision is to ensure the protection of
civilian from being targeted by the hostilities of adverse party. 46
If the combatants intentionally not distinguish themselves by not
wearing uniform of armed forces from the civilians and still
participate in the hostilities then they may not be entitled to the
rights and protection as P.O.Ws after falling into the hands of
adverse parties such as spies, but if such persons are under the
uniform of their armed forces then they would be given the status
of P.O.Ws47. If combatants fail in such distinction then they will
lose the status of P.O.Ws48.
Swarka case 1974:
In Swarka case in 1974, Israeli Military Court found that some

members of Egyptian armed forces attacked their civilians in
civilian attire and declared that they are not to be given the status
45
Military manual of Argentina, Australia, Belgium, Benin,
Cameroon, Canada, Colombia, Croatia, France, Germany, Hungry,
Israel, Italy, Kenya, Netherlands, New Zealand, South Africa, Sweden,
Switzerland, U.K and U.S
46
Art. 44(3) of AP1
47
Art. 46 of AP 1
48
Rule 106 of Customs of war
of P.O.Ws.49 Combatants are obligated to wear the uniformed

signs that are visible from distance50.
Kassem case:
In the Kassem case the Israel military court held that

defendants fulfilled the requirement of wearing the distinct
uniform as their uniform was different than regular civilians
but the failed to show that they were carrying arms openly
as the weapons were hidden until they were fired against
Israeli soldiers so carrying arms openly is also important for
combatants.51
DISTINCTION IN THE MEANS AND METHOD OF

WARFARE:
The word “means and methods” includes weapons in the widest

sense as well as the ways in which they are used. There are some
weapons which are unlawful in their use so does their use in any
manner becomes unlawful under IHL as those weapons may
cause indiscriminate harm to the civilians even if they are
directed towards the military objects but these weapons fails the
principle of distinction in terms of extensive damage such as
superflux weapons. There are some weapons which are not
indiscriminate and are precise for use but the manner and the
way in which those weapons are use may be unlawful as if they
are directed towards the civilian object52
49
Israel military court Swarka case 1974
50
Germany military manual
51
Israeli military court Kassem case 1969
52
U.S army field manual 25-10, para 3
The Martic Case:
In this case ICTY explained the legality of the cluster bomb and
its use according to the customary international Law, including
the prohibition of indiscriminate attack involving means and
methods of warfare which cannot be directed towards a specified
military objective and may cause excessive damage to protected
persons and objects.53
So, both the weapon and the methods are to be lawful as well.
The principle of distinction rests upon the means and methods
used in an attack. It is not required from a party to do something
which is not in their means and capacity, but if a party has the
means and capacity then it should use those means to distinct
between the legitimate targets in an armed conflict. Use of land
mines are not prohibited as indiscriminate attack but if they are
used in a civilian areas such as towns and villages and not in the
battle field then they may be considered as indiscriminate attacks
due to the method in which they are being us because in such
situation it may kill or harm civilian population. An attack by
bombing which can cause the excessive and extensive damage
to the civilians and civilian objects or civilian population and
cause even incidental loss of civilians are prohibited even if such
attacks are directed towards the military objective.54 The means
and methods not only include the use weapons but it also
includes the tactics of war. Parties to an armed conflict must not
use the presence of protected persons under IHL such as
civilians, P.O.Ws, detainees as well as medical units as human
-Nuremberg trails
53
Martic case of ICTY
54
Art. 51 (5) of AP 1
shield to render some points immune from the military

operations of adverse parties, nor should use the civilian objects
to defend against the attack. It is against the principle of
distinction regardless of the fact that whether it was it was done
by the consent of protected persons or it was coercively done.55
Prosecutor v Karadzic case:
In this case the chamber held that the use of human shield, by
the placement or detention of persons in area where they may be
exposed to combat operation for the purpose of rendering certain
areas or activities immune from military operations or enemy
attacks is prohibited under IHL. The prohibition of use of human
shield does not depend upon the actual harm or attack. It is
unlawful and does not matter whether either way.56
Prosecutor v Blaskic case:
In conclusion to this case the trail chamber held that the villagers
of Go-ice served as human shield on the orders of General
Blaskic for his headquarters in Vitez. This inflicted considerable
mental suffering upon the persons involved as they were Muslim
civilians no longer taking part in combat operations. By this act
they suffered inhumane treatment and General Blaskic is
convicted of war crime for the violation of principle of
distinction.57
55
Art. 51 (7) of AP 1
56
Prosecutor v Karadzic case
57
Prosecutor v Blaskic case
ATTACK:
Although IHL continuously prohibits the attack on the civilian

objects, civilians and civilian population but the definition of the
term “Attack” is given in the article 49 of AP 1. In IHL the
meaning of the word attack is different from the general meaning
of the word. Generally the term attack means to set forth the
hostilities58 and the other general meaning of this word is to
strike the first strike in the combat. According to article 49 (1)
of AP 1 attack means an act of violence against the adversary
whether it is offensive or defensive and in whatever territory
conducted.59 It includes attacks from land, sea and air. The
meaning of attack in the military manuals of many countries is
provided as an offensive act aimed at destroying enemy forces
and gaining ground60. The question of responsibility for
unleashing the conflict is of totally different nature and is related
to the jus ad bellum and IHL rather focuses on the responsibility
of caring out offense under the limits imposed by IHL and is
related to the jus in bello. Attacks which are launched against the
resources destruction of which will affect the survival of the
civilian population are prohibited but there is an exception that
if the population wants to counter the invasion or occupation by
destroying such resources. All the attacks which are
indiscriminate and which spread terror or causes harm or injury
to civilian population or civilian object and attacks which are
launched without precaution or are reprisal attacks are prohibited
in IHL. Riots or others disturbances that does not fall under the
58
Short oxford dictionary
59
Art. 49 of AP 1
60
IHL customary practice of military manuals of many countries
hostilities of armed conflicts are of different nature and are not

considered as an attack in context of IHL.
Nuclear Weapon Case:
The ICJ in its advisory opinion in this case indirectly defined the
term indiscriminate attack as an attack incapable of
distinguishing between civilians and military targets. And
prohibition of such attacks constitutes respectful principle of
customary International law and is in conformity with the
principles of IHL which prohibited such attacks at very early
stage due to their indiscriminate effects on civilians and
combatants.61
III. PRINCIPLE OF PROPORTIONALITY:

This basic principle of IHL prohibits the attack on military
objectives if such attacks are intercepted to cause the incidental
loss of civilian lives, injuries to civilians, damage to the civilian
objects or a combination of thereof to gain a direct military
advantage against the other party.62 Principle of proportionality
is evident to the fact that in an armed conflict there may be
damage to civilian objects or injuries or even loss of civilian
lives. This principle of IHL ensures that the loss of civilian lives
should not be excessive as compared to the military advantage
anticipated63. Its limits the civilian casualties and damage caused
61
Nuclear weapon case ICJ
62
Art. 51(5)(b) of AP 1
63
Rule14 of customary IHL
during a military operation. The damage should not be

disproportionate to the military advantage gained. The attack on
military objectives is lawful under IHL and it does not become
unlawful because of the risk of harm caused to the civilians
working in that military building if the attack is proportionate.
According to principle of proportionality the presence of non-
civilian individual in the civilian population will not deprive the
civilian characteristic of the population and they not become a
legitimate target to attack.64 Principle of proportionality puts
limitations on the principle of military necessity. The principle
of proportionality does not allow attacks to kill few military
soldiers and incidentally cause huge number of civilian
casualties. How the principle of proportionality is to be justified
varies from case to case. Mostly it is measured by comparing the
number of soldiers killed with the number of casualties of
civilians and if civilian loss in not excessive them the attack
becomes proportional, but this does not apply in all the cases, for
example if there are 10 military generals at a place and there are
20 civilians present on that spot at the time of the meeting then
an attack to kill those 10 military officers will give a huge
advantage to the perpetrators of the attack and even if in the
operation of attack civilian casualties are more in numbers than
the military generals but still the attack will be considered
proportional, so proportionality is not always based on the
numbers but on the military advantage gained as well. The
concept of collateral damage is also derived from the principle
of proportionality which allows the loss of incidental civilian
lives when the attack is directed to gain a decisive military
64
Art. 50(2) of AP 1
advantage and the civilian loss in the operation is unavoidable

due to the circumstances at hand.
Prosecutor v Prlic case:
In the case of prosecutor v Prlic the appeal chamber held that if

the attacks are directed towards the military objective then the
collateral civilian damage is not unlawful under the IHL but the
attack should satisfy the customary test of proportionality65.
Collateral damage must be justified by military necessity and
may be an exception to the protection of civilian property66
.Prosecutor v Kuperskic case:
Protection of civilian property and civilians may cease entirely,

or be reduced or suspended, when the target of a military attack
is comprised of military advantage and it is impossible to avoid
causing collateral damage to civilians67.
Israel the target killing case:
Proportionality is only questioned when the attack is launched

towards the military objective, combatants or even civilians if
they are taking direct part in hostilities at that time, after that if
there is loss of lives of innocent civilians and that loss is
proportionate that it will be considered as the collateral damage.
65
Prosecutor v Prlic case, para 124
66
Prosecutor v Hadzihasanovic, case 2006, para 45
67
Prosecutor v kuperskic case
In case if the civilians are being used as the human shield or are
living amongst combatants in military objectives then the attack
does not become illegitimate68.But when the damage to the
civilians is not proportionate to the advantage gained then the
attack is forbidden and disproportionate69. Take a usual case that
a combatant or a terrorist is sniper shooting at civilians or
combatant, shooting at hi is proportionate even if an innocent
civilian is harmed, but bombing him may cause excessive
damage to the civilians nearby and will be disproportionate70.
CONCERTE AND DIRECT MILITARY ADVANTAGE:
The ICRC Commentary on the 1977 additional protocols states

that the expression “concrete and direct military advantage” was
intended to show that the advantage concerned should not be
substantial and relatively close, and that the advantage which are
hardly perceptible and those which would only appear long term
should be disregarded. Upon ratification of AP 1 New Zealand
and Australia stated that expression concrete and direct military
advantage means that positive expectation that the attack will
make a relevant and proportional contribution to the objective of
military attack involved71 Egypt upon its signature to ICC
Statute declared that term concrete and direct military advantage
68
Israel the target killing case, para 42
69
Ibid, para 45
70
Ibid, para 46
71
New Zealand and Australia, Declaration upon ratification of AP 1
means advantage anticipated by the perpetrator at the time of

attack and must be proportionate.72
Prosecutor v Ante Gotovina case:
In this case the trail chamber analysis with regards to the

defendant’s attack on the military objectives was based on the
livelihood of the attack. The trail chamber held that the attack
did involve a lawful military objective but it was not based on
the concrete assessment of military advantage. Defendant at the
time of attacking did not make any findings on resulting damage
and casualties. Weight and livelihood of the attack was not
determined by the defendant that will the military advantage
actually occur or not. Concrete and direct military advantage
should be expected to provide results as expected by the concrete
assessment.73
Prosecutor v Galic case:
In this case the chamber held that once military character of the
target has been ascertained, commander must consider that
whether striking the target expected to cause incidental loss will
be excessive in relation to the concrete and direct military
advantage anticipated. If such excessive amount of casualties
expected to result, the attack should be refrained. In the present
case, firstly there is no prove that the defendant or his sub-
ordinates had any knowledge about their target being present at
72
Egypt’s declaration upon signature to the ICC statute
73
Prosecutor v Ante Gotovina ICC
the spot, secondly although there were number of soldiers

present there but the spot was crowded by approximately 200
civilians including children. It was clearly expected to cause
excessive damage to the civilians.74
Fuel Tanker case 2010:
In this case the court laid down the interpretation to the term
concrete military advantage that such advantage at the time of
order to the attack, it is anticipated to cause proportionate
damage to the civilian which is not excessive. Standard of such
military advantage must be to destroy or weaken the hostile
troops or their means of combat and must be instant decisive
advantage.75
According to the military manuals of some states, an advantage

is to be considered concrete and direct if the commander
reasonably and honestly anticipates that the attack contributes to
the success of operation as a whole.76 Such advantage must be
foreseeable by the commander at the relevant time and must not
be excessive to civilians. Otherwise it will become a war crime
under ICC Statute.77
The human rights N.G.Os are strictly against the concept of the
collateral damage, they consider right to life as perfect human
and believe that the concept of collateral damage disturbs the
74
Prosecutor v Galic case, ICTY
75
Fuel tanker case 2010
76
Military manual of Cote d’ Ivoire and Canada
77
Explanatory footnot in Elements of War crime under ICC Statue
essence of IHL and indirectly permits to kill civilians

inhumanely. Through this concept every attack can be defended
as collateral and the civilians are not entirely protected in the
armed conflict with is against the principle of protection of
IHL78. Human right approach to the civilians is strict then the
IHL and they do not understand reality of war that war allows
the person to kill its adversary. Principle of proportionality tries
to restrict the loss of civilian lives but still in an armed conflict
it is impossible to not to kill anybody. Proportionality even
imposed the limits to use of weapons which are excessive and
can cause harm to the civilian population or civilian objects.
Shimoda v State of Japan:
The Japanese court held the use of atomic as illegal means of

warfare under the law of war even if the target of such bombing
is a military objectives, its result is same as blind areal-
bombardment because of the tremendous amount of destructive
power of such bomb which makes its use disproportionate.79
If 10 tones bomb is used to destroy one building, it is inevitable

that the damage will obviously be excessive and will damage the
nearby building. Use of that much amount of force will be an
overkill and is disproportionate under IHL. Any attack which is
not directed toward a military objective and is intercepted to
cause huge amount of civilian casualties is to be immediately
refrained.80
78
Reports by human rights NGOs
79
Shimoda v State
80
Art. 57(2)(a)(iii) of AP 1
Prosecutor v Perisic case:
Any indiscriminate attacks which may cause the

disproportionate civilian casualties is in terms of military
advantage gained or treat at hand and may rise the conclusion
that the target of attack were civilians and not military
members81.
IV. MILITARY NECESSITY:

The principle of military necessity is also one of the core
fundamental principles of IHL and it can be broadly interpreted
as the principle that allows the parties to an armed conflict to use
whatever means are necessary required to achieve the decisive
military advantage by lawful means of warfare82. This principle
is totally interrelated with the principle of proportionality. This
principle allows measures that are necessary to accomplish a
legitimate military purpose and are not prohibited by IHL. The
term legitimate military purposes in context of IHL are those
which are bound by and are inconformity with the limits that are
laid down by principle of proportionality in case of an armed
conflict to weaken the military forces of the adverse party.
Attack justified by military necessity is always directed to a
military objective as its main purpose is to gain a legitimate
military advantage and if such attack is directed towards civilian
object then such attack is prohibited as it cannot be justified by
81
Prosecutor v Perisic case 2011, para 97
82
Oxford biographies
military necessity because what military advantage can be

gained by attacking civilians and civilian objects.
Prosecutor v Prlic case:
In this case there was a disagreement between trail chamber and

appeal chamber on the issue of destruction of Symbolic Old
Bridge of Mostar. This difference of opinion opened ground for
an in-depth discussion about the protection of cultural heritage
in an armed conflict. It was held by the chamber that the
obligations of belligerents towards the protected property under
art 53 is stricter than the one imposed under Hague Convention
1954 because it provides for no derogation for military necessity.
No attack is permitted until the object remains civilian object and
is not converted into military objective. Even if no distinctive
symbol is used on the cultural property or cultural and historical
monuments used, still such property remains under the
protection of IHL unless it remains civilian object83
The Al firdus bunker case:
In the case of Al-Firdus bunker case between Iraq and Croatia,

Croatian forces had evidence that the bunker was being used as
Iraqi command and control center and the bunker was attacked
on the bases of principle of military necessity as it was a
legitimate target destruction of which was also a legitimate
military purpose. They did not have the knowledge that the
83
Prosecutor v Prlic case
bunker was being used by civilians as bomb shelter. Croatian

forces had no obligations to refrain from attacking the bunker as
it was a legitimate target. Iraq had the obligation to keep the
civilians away from a legitimate military target under IHL.84
When an object is a military objective by its nature, location, use

and purpose then purpose its destruction can be justified as
legitimate military purpose and it is the obligation of the state to
whom such military objective belong to keep the civilians away
from such building or establishment. But use of means and
methods in such attacks should be proportionate and weapons
used in military necessity should not be indiscriminate. Just like
proportionality, military necessity is also the principle that
allows collateral damage in course of military operation85.
Prosecutor v Bosco Ntaganda case:
In this case the chamber declared that the destruction to the

protected object in military operations can only be justified if it
is satisfied by the requirement of imperative military necessity.
Consequently the destruction of the property of adversary is
considered as wanton if not justified by the military necessity at
any point.86
In Gaza case of bombing mosques and schools:
Establishment or building is a civilian object and illegitimate

target for military necessity, but that establishment is being used
for military operation for example In Gaza case the religious
84
Al-Firdus bunker case
85
Art. 15 of lieber code
86
Prosecutor v Bosco Ntaganda case
mosques which were a civilian objects and were being used by

the Palestine forces for military purpose such as storing and
hiding weapons became legitimate target for Israel as they
claimed that they had no doubt that the mosques and schools
were being used for military purposes. They justified their surety
by showing missiles coming from the mosques and school and
claimed that their attack on such civilian objects were based on
the military necessity as those buildings lost their civilian status
when they were being used for military purposes87.
Hostage case:
In this case Nuremburg tribunal found not General Rendulic

guilty on the ground that the scorch earth destruction that he
carried out in instance was reasonably justified and based on the
military necessity at the time the action was carried. And his acts
were to secure his territory against the territory intervention, so
civilian loss was incidental.88
RENDULIC RULE:
So like proportionality, military necessity requires the

subjective analysis of the situation as well in such cases. Military
necessity is dependent upon the judgment and knowledge of the
commander, in case if the commander has doubts about the
status of building then he may presume that such building is not
being used for military purposes.
87
Gaza case of bombing on mosques and schools
88
Hostage case
Military necessity consists of measures that are necessary to be

taken by the party to an armed conflict in order to end the armed
conflict as quick as possible according to the article 14 of Leiber
code which are basically military rules and instructions given by
Abraham Lincoln to the military soldiers during the American
cold war and its provisions were later added in Hague
convention and are customary in nature89. In case of a newly
developed weapon which has not been used may be used in an
armed conflict due to the principle of military necessity, and in
such scenario the calculation about its impact may not be known
and it may be disproportionate and cause indiscriminate damage
so it is argued that such untested weapons must not be used as it
may not justify the criteria of military necessity in case
proportionality.
V. PRINCIPLE OF PRECAUTION:
This principle of IHL obligates the parties to armed conflict to
take measure during their conduct of military operation to ensure
the protection and respect of civilian, civilian population and
civilian objects and to spare them90. This principle is covered in
Chapter IV AP 1 of GCs and discusses the precautionary
89
Art. 14 of lieber code
90
Art. 57 (1) of AP 1
measure in to be taken by both the attacking party and the party

subject to the attack.
ATTACKING PARTY:
The party launching the attack is obligated to take some

precautionary measure before launching the attack. They are
obligated under IHL to make every possible effort to verify that
the attack that they are about to launched is not directed toward
the civilians or civilian population or civilian objects or persons
subject to special protection such as refugees or medical units or
persons with the white flags (ICRC), they should verify that
attack is being launched towards the military objectives which
are legitimate targets under the provisions of IHL91. Even if the
attack is directed towards the military objective still the attacking
party must take all the possible precautions in use of means and
methods to avoid or minimize the loss of civilian lives, injury to
civilian and damage to the civilian objects and property. If the
attack is expected to cause excessive and extensive damage to
the civilian life, injury to civilians, damage to the civilian
property or a combination of thereof, and the damage is not
proportionate to the military advantage gained then such attacks
are prohibited under IHL and are to be refrained from being
launched. If such attack is directed towards the civilian objects
or protected objects or persons and not towards the military
objectives, then in such case the attack may result in a lot of
civilian casualties and damage and should be cancelled at once.
If possible the attack should be notified to the other party to
91
Art. 57 (2) of AP 1
protect the civilian population, but only if the attack is not

confidential.92 If there are several legitimate targets available to
the attacking party which give the same military advantage, then
the target which will result in least civilian damage should be
attacked.
Israel, Human Rights Committee report on Beit Hanoun:
It was held by the committee that IHL principles must be

respected and it is an obligation to take necessary precautions to
avoid and minimize the loss of civilian lives and damage.
Aiming rockets at civilian target is a violation of this obligation
as it would be dangerous to the Palestinian civilians by launching
missiles rokets from or near civilian objects.93
PARTY BEING ATTACKED:
The party which is being attack also has some precautionary

obligation in respect of the protection of their civilians. They are
obligated to remove civilian population, individual civilian and
civilian objects from the range of military objective.94 They must
evacuate the civilians and must not violate the good faith of the
provision of IHL by using as human shield and keeping them
under the military objective to immune them from any attack.
The party being attack should avoid locating military objectives
92
Ibid,
93
Beit Hanoun case, Human Right Committee, Israel
94
Art. 58(a) of AP 1
inside or near densely populated areas where civilians are in the

large number.95 They must take other important precautionary
measure and steps to protect the civilians, civilian population,
civilians object under their control from the danger resulting
from the attack directed towards them96.
U.S v Welhelm List case:
In this case the defendant was found not guilty on the basis that
he had taken the precautionary measures at the time of attacking.
Court held that the attack is to be justified of tier of facts that
whether the perpetrator consulted available report regarding to
the attack, whether the attempted to ascertain the probable
civilian loss, whether he considered the alternative means and
measures to reduce the civilian loss, and whether he took steps
such as evacuating the civilians when attack was initiated to
minimize the civilian casualties.97
Iraq, Situation of Internally Displaced Persons:
“It is essential that all the precautionary measures be taken

before any offensive action to ensure that necessary protection
95
Art. 58(b) of AP 1
96
Art. 58(c) of AP 1
97
U.S v Welhem List, Nuremberg tribunals
in accorded and humanitarian assistance is in place and ready to

be distributed to internally displaced persons”.98
VI. PRINCIPLE OF GOOD FAITH:

This principle provides that every state should exercise the rules
and provisions of IHL and its conventions in good faith. The
parties to an armed conflict should not use these principles, rules
or provisions of IHL to gain illegitimate advantage and benefit
by misusing the protection and manipulating these rules,
principles and provisions of IHL such as use of civilians and
other protected persons and their status to take cover in defensive
purposes.
WHY CLASSIFY CONFLICTS?
It is often mentioned that war is a war, and the outcomes of

war are of the same no matter what type it is. Likewise,
problems faced by the victims are of the same nature and need
similar protection. Further, from a humanitarian point of
view, the same rules should protect victims of all types
irrespective of the armed conflicts. However, the
humanitarian actors and victims require to qualify the
conflicts before invoking protective rules under international
humanitarian law (IHL). The classification of conflicts is a
reality in IHL application and is important because the
98
Situation of internally displaced persons, Iraq
application of IHL provisions varies in different conflict

situations. For example, during an international armed
conflict, Geneva Conventions I-IV and Additional Protocol I
apply to all parties to the conflict. Customary rules applicable
in international armed conflicts are also applicable. However,
during a non-international, or internal, armed conflict, only
the fundamental guarantees of Article 3 common to the Four
Geneva Conventions of 1949 and customary IHL are
applicable. The provisions of Additional Protocol II also
apply in such situations if the party concerned is a party to the
Convention. Further, in cases of international conflicts,
international intervention is permissible per se under
collective action. But in non-international conflicts, the
sovereignty of the state will come into play and interference
need further serious justification. Hence classification of
conflicts to international armed conflicts will give better
chances of protection for victims and humanitarian
intervention. As non-international armed conflicts usually
happen within the boundaries of the states, they would prefer
to stick on to the inherent right to use force within its
boundaries and exclude the intervention of the international
law. This justifies the less protection under IHL in non-
international armed conflict situations. Moreover, IHL rules
of non-international armed conflict are new compared to IHL
provisions relating to the international armed conflict. The
classification of armed conflicts into an international armed
conflict gives advantages like the distinction between
combatants and non-combatants, the status of prisoners of
war (Article 4, GC III), and protection for civilians and those
who do not take part in the conflict. Further, it also enables
the states to prosecute perpetrators for war crimes committed.
These advantages are not available in situations of non-

international armed conflict
WHY AND HOW ARMED CONFLICTS ARE
CLASSIFIED?
Until the World War II, there was only one-armed conflict as
international law as a whole was concerned only with the
relationship between States. It was possible for the laws of
war to apply to non-international armed conflicts only in
cases where there was recognition, either by the State
involved in such conflicts or by a third State of the
belligerency of the insurgent party. Learning from the
practice of some States and of the League of Nations
initiatives during the Spanish Civil War (1936–1939), the
Geneve Conventions of 1949 established the bifurcation of
IHL into the law of international armed conflicts and that of
non-international armed conflicts. It is widely accepted that
drawing a line of demarcation between international armed
conflict and non-international armed conflict is not an easy
task and unfortunately, there is no internationally authorized
institution to classify armed conflicts. The classification of
international armed conflicts is clearer and easier as Article 2
common to the Geneva Conventions of 1949 provides that the
Conventions “shall apply to all cases of declared war or of
any other armed conflict which may arise between two or
more High Contracting Parties, even if the state of war is not
recognized by one of them”. Hence when there is an armed
conflict between two states, it may be classified as an
international armed conflict even if one of the states deny its
existence.
However, classifying an armed conflict as a non-international
one and distinguishing it from an internal tension is not an

easy task and often is not accepted by the states concerned.
Organs of United Nations and organizations like the
International Committee of the Red Cross do classify armed
conflicts for their internal purposes. However, this need not
necessarily have to get acceptance from the states.
INTERNATIONAL ARMED CONFLICTS (IAC) AND

INTERNATIONALIZED NON-INTERNATIONAL
ARMED CONFLICTS (INT. NIAC)
According to Common Article 2 to the Geneva Conventions

of 1949, an IAC occurs when there is a declared war or any
other armed conflict between two states even when the state
of war is not recognized by any one of them. This is regardless
of the reasons or the intensity of the confrontation. Relevant
rules of IHL may apply even in the absence of open hostilities.
Moreover, no formal declaration of war or recognition of the
situation is required. Also, the existence of international
armed conflict is assumed in situations of partial or total
occupation of the territory of a state party, even if the
occupation meets no armed resistance.
As per Additional Protocol, I Article 1 para 4 IAC also
includes situations in which people are fighting against
colonial domination and alien occupation and racist regimes
in the exercise of their right of self-determination. This article
was included when most of the colonies were fighting for
independence from European colonizers. Hence
contemporary insurgent movements in different states may
not fall into this category unless it is against colonial
domination, alien occupation and racist regimes in the
exercise of their right of self-determination. In the Tadic

Case, ICTY defined international armed conflict thus: "an
armed conflict exists whenever there is a resort to armed force
between States". The definition has been widely adopted by
other international bodies since then. A NIAC may become
an IAC (internationalized non-international armed conflict)
by the intervention of armed forces belonging to, or under the
overall control of one or more third states. However, if the
intervention is with the consent of state authorities and is
against the rebellion, then it will remain a NIAC. If the State
authorities did not consent, and the support by the intervening
third state is given to the rebels, then it becomes IAC. If the
armed forces of the third state remain distinct from the rebels
and do not fight along with them, then co-existence of both
IAC and NIAC occurs. If armed forces of the third state mix
with rebels and fight, then it becomes an IAC. ICTY in Tadic
Case set a test of overall control to determine the level of
intervention by the third state. According to the ICTY,
“[C]ontrol by a State over subordinate armed forces or
militias or paramilitary units may be of an overall character
but must comprise more than the mere provision of financial
assistance or military equipment or training”. 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 international humanitarian law. The
control required by international law may be deemed to exist
when a State has a role in organizing, coordinating or
planning the military actions of the military group, in addition
to financing, training and equipping or providing operational
support to that group. Acts performed by the group or

members thereof may be regarded as acts of de facto State
organs regardless of any specific instruction by the
controlling State concerning the commission of each of those
acts.
NON-INTERNATIONAL ARMED CONFLICTS

(NIAC)
Two main legal sources have to be examined to determine

existence of NIAC under the international humanitarian law.
They are:
(a) Common Article 3 to the Geneva
Conventions of 1949;
(b) Article 1 of Additional Protocol II.
Common Article 3 applies to "armed conflicts not of an
international character occurring in the territory of one of the
High Contracting Parties". Unfortunately, Article 3 Common
to all four 1949 Geneva Conventions does not specify
precisely when it will apply, referring only to an ‘armed
conflict, not of an international character occurring in the
territory of one of the High Contracting Parties’. Whether or
not such a conflict is taking place is determined by criteria
which have been fleshed out by customary international law.
A NIAC situation requires the following essential elements to
qualify under IHL:
• Armed confrontation is taking place within the

territory of the state
• Armed violence between government v. armed
insurgent groups and/or between themselves

• It is clear that in all NIAC, at least one party must
be considered a non-state group
• Reasons for the conflict must be for taking over
the reigns of power, or to obtain greater
autonomy within the state, or to secede and
create a separate state
• Caused or ignited by various reasons, like
oppression and other human rights violations,
crumbling of the governmental system or
revolting against dictatorial rule
In the Tadić Case, the Appeals Chamber of the ICTY referred
to NIAC as a situation of ‘protracted armed violence between
governmental authorities and organized armed groups or
between such groups within a State’. In the words of the
Appeals Chamber in Tadić, it must be an ‘organized armed
group’. The factors relevant to determining whether an armed
group is ‘organized’ are as follows:
• The existence of a command structure and
disciplinary rules and mechanisms within the
group;
• The existence of headquarters;
• The fact that the group controls a certain
territory;
• The ability of the group to gain access to
weapons, other military equipment, recruits and
military training;
• Ability to plan, coordinate and carry out military
operations, including troop movements and
logistics;
• Ability to define a unified military strategy and

use military tactics; and
• Ability to speak with one voice and negotiate and
conclude agreements such as ceasefire or peace
accords.
The same test is adopted in Article 8(2)(f) of the Statute of the

International Criminal Court (ICC). As the ICC Statute
indicates, a NIAC excludes ‘situations of internal
disturbances and tensions, such as riots, isolated and sporadic
acts of violence or other acts of a similar nature.
INTERNAL DISTURBANCES AND TENSIONS

Internal disturbances are situations of confrontation within a
country. These confrontations are of certain seriousness and
durations, and involve acts of violence which do not have the
intensity of a NIAC. (AP II Art.1) Internal disturbances and
tensions include situations of serious tensions like political
religious, racial, social and economic etc. it may also have
sequels of conflict or disturbances. (AP II Art.1)
APPLICATION OF IHL IN INTERNATIONAL

ARMED CONFLICTS AND INTERNATIONALIZED
ARMED CONFLICTS
GC I to IV has around 425 Articles which apply in situations

of IAC and Internationalized NIAC. Additional Protocol I
exclusively deal with situations of IAC and Internationalized

NIAC and contains around 100 plus Articles.
They apply to the following groups:
• Wounded or sick military personnel in the land
and naval warfare
• Members of armed forces’ medical services
• Prisoners of war
• Medical and religious personnel or civil defence
units
• Civilian population including
o foreign civilian on conflict area
including refugees
o civilians in occupied territories
o civilian detainees and internees
APPLICATION OF IHL IN NON- INTERNATIONAL

ARMED CONFLICTS
Following provisions apply to situations of NIAC

• Common Article 3 of the Geneva conventions of
1949
• Additional Protocol II of 1977
• Customary Law And it protects
• every individual or category who are not or no
longer taking part in armed conflict (Common
Article 3 of GC)
• wounded or sick fighters
• people deprived of their freedom because of the
conflict
• the civilian population
Common Article 3 provides that persons not actively taking
part in hostilities including civilians and Hors de combat shall
be treated humanely and without any adverse distinction of
race, creed, religion, faith, colour, sex, birth or wealth.
Following acts are prohibited in all circumstances
• violence to life and person
• murder of all kinds
• mutilations
• cruel treatment and torture
• outrages on personal dignity, in particular,
humiliating and degrading treatments
Additional Protocol II develops and supplements the

Common Article 3 and shall apply to all conflicts which are
not covered by AP I. To qualify for the application of
Additional Protocol II, the non-state parties to the conflict
shall have the following:
• A responsible command
• Exercises control over parts of its territory which
enables them to carry out sustained and
concerted military operations and to implement
this protocol
• It shall not apply to situations of internal
disturbances and tensions, such as riots, isolated
and sporadic acts of violence and other acts of a
similar nature, as not being armed conflict
• It shall be applied without any distinction
whatsoever.
The definition in AP is narrower than the notion of NIAC
under common Article 3 in two aspects. First, it introduces a
requirement of territorial control, by providing that non-
governmental parties must exercise such territorial control "as
to enable them to carry out sustained and concerted military
operations and to implement this Protocol". Secondly, AP II
expressly applies only to armed conflicts between State
armed forces and dissident armed forces or other organized
armed groups. Contrary to common Article 3, the Protocol
does not apply to armed conflicts occurring only between
non- State armed groups. Judgments of the ICTY also throw
some light on the definition of NIAC. As mentioned above,
the ICTY went on to determine the existence of a NIAC
"whenever there is protracted armed violence between
governmental authorities and organized armed groups or
between such groups within a State". The ICTY thus
confirmed that the definition of NIAC in the sense of common
Article 3 encompasses situations where "several factions
[confront] each other without involvement of the
government's armed forces".
APPLICATION OF IHL IN INTERNAL

DISTURBANCES AND TENSIONS
IHL does not apply during internal disturbances and tensions

as there is no armed conflict in existence. The legal regime
which governs such situations is the domestic laws of the
country concerned. It is also important to note that in times of
peace, core human rights and fundamental guarantees similar

to those set out in common article 3 are applicable as
elementary considerations of humanity. (see Nicaragua Case,
ICJ 1986, quoting Corfu Channel Case, ICJ 1949)
GAPS Of IHL:
The term “gaps” indicates deficiencies under IHL that needs to

be filled by introducing more laws.99 Although both IAC and
NIAC have been defined by ICTY,100 there is debate going on
about emergence of new types of wars101 (arguably drug-war).102
Some conflicts unclassifiable as IAC and NIAC constitute a
third-regime alias Grey-zone-conflicts unavailable under IHL103
Whether or not armed-conflicts meet criteria under
Common-Art-3 depends on case-by-case scenario.104 IHL
does prohibits torture but what threshold of mistreatment is
to be considered torture is grey-area not covered by IHL-
treaty-law.105 Internment of civilians in NIAC is not covered by
IHL, Thus, arguably such gaps are to be covered by HR laws.106
Another controversial grey-area is qualification of Global-war-

on-terrorism qualify as armed-conflict under IHL, Global IAC
can’t be between states and armed-group.107 If the violence
99
Charles P.Trumbull
100
Tadic-case,Para.70
101
M. Kaldor, “Elaborating New War Thesis”
102
Fordham IL Journal, Mexican-Drug-War: A case for a NIAC,
Vol.34,P.1042-1086
103
INT’L SEC.ADVISORY BD., Report on Gray-zone-Conflicts,2017
104104
Rutaganda-case,Para.91
105
Delalic-case,Para.469
106
IHL and Challenges of Contemporary AC, P.730
107
Common-Art.3,GCs
reaches the threshold it falls under IHL as NIAC.108 Although

these conflicts like between Taliban and afghan government, are
governed by laws of NIAC there is still new component of
presence of foreign military on side of one party to conflict
which is uncovered under IHL.109 This is emergence of a new
grey area in terms of classification of armed-conflict known as
multinational-NIAC.110 Some view terrorism as criminal act but
some states believe it to be act of war.111
Application of IHL in cyber-operations is another gap and such

modern techniques of warfare are problematic in complying with
the Present IHL provisions.112 Attack is defined under AP1113 but
it seemly excludes cyber-operation114 as it is nor attack wanting
violence.115 ICRC suggests operation designed to disable object
by computer-network also constitutes attack as hostilities
whether or not the object is disabled through cyber-means.116
Launching attacks from remote-places creates difficulty in
determining responsibility for violation of IHL.117 Cyber
perfidy118, Autonomous-weapon-system and Artificial-
108
IHL and Challenges of Contemporary AC,P.724-724
109
International Review of Red Cross,Vol.89
110
ICRC IHL Answers to your Questions,Geneva.2004
111
Washington-Times,16-3-2009
112
The Yale Journal of IL,Vol.42:2 Pg.18
113
Art.49(1)AP1
114
Frenkel,Supra-note.12
115
German Manual, Para.474
116
INT’L COMM. OF RED CROSS, Report on 32nd IHL conference at
41,2015
117
Society and change ,Vol. XI, Challenging the implementing IHL in
contemporary landscape
118
Dormann.2004
intelligence are some other gap found in modern era of warfare

uncovered by IHL provisions.119
IHL provides that a person loses protection against attack by

taking direct part in hostilities120 but what constitutes direct or
indirect participation is undefined grey-area.121 Activities
merely support the adverse party such as monetary aid,
selling goods and machines to armed forces or expressing
sympathy to an armed party in an armed conflict does not
constitute direct-participation.122 Some consider voluntary
human shield as direct participation123 but some believe that it
does not fall under direct participation.124 HR Watch argues that
they only participate indirectly in hostilities.125
Present occupying laws do not satisfy these new immerging

occupation scenarios open new gaps as there is still requirement
of guidance.126 Another grey area is amount of force to be used
on occupying territories.127 Role of PMSCs in an armed conflict
falls under the grey areas not covered by on mercenary-ism,
119
IHL and Challenges of Contemporary AC, CH.2.2
120
Art.51,AP1
121
Henckaerts and Doswald-Beck,Vol.2,Practice,120-121
122
Target Killing Case, Para.35
123
Yoram-Dinstein, The Conduct of Hostiles under Laws of IAC,256
124
IHL and 21 Century’s Conflicts,191,200
125
HR Watch Briefing Paper,20-2-2003,Ch.1
126
https://www.casebook.icrc.org
127
3rd meeting of Experts: Use of force on occupied territory
whether they are to be considered mercenaries128 or whether they

are to be given the status of combatants.
128
Privatization of Warfare, Violence and PMSCs, Jordi Palou-
Loverdos Pg.22,171
UNIT: II
PRINCIPLE OF PROPORTIONALITY
The bombing on Hiroshima and Nagasaki -1945
Introduction:
The rule of proportionality is what establishes a balance

between military necessity and considerations of humanity in
military desires. Determining precisely what falls within the
assessment of proportionality, and how the two are to be
balanced, is extremely complex as a matter of law and practice.
Attacks are carried out in extremely different situations, and the
context in which an attack is conducted is critical when assessing
its compliance with the law. In some attacks, expected incidental
harm can be carefully assessed but it is not the same with all
attacks. Belligerent resources and capacities to collect
information, combine and analyze intelligence regarding target
also vary case-to-case. The rule of proportionality and the
obligation to take all feasible precautions apply to all attacks.

What changes is how they are applied in practice. For example,
what constitutes ‘reasonably available’ information for
estimating expected incidental harm will vary case-to-case, as
will the precautions that can be considered ‘feasible’. For the
purpose of proportionality assessment, it is important to
determine that what harm must be considered incidental in
proportionality assessments and its effect in relation to ‘military
advantage anticipated’. Proportionality requires good-faith
efforts of compliance by commanders and all operational
decision makers in deciding whether expected incidental harm
would be excessive. How a commander implements the rule of
proportionality (as well as the obligation to take all feasible
precautions) will often serve as a touchstone of overall
commitment to compliance to proportionality.
Putting the Rule in Context:
Proportionality in general requires the balancing of the adverse

effects of actions against the objective sought. First, in the
context of jus as bellum, proportionality that the resort to force
in self-defense against the treat of armed attack must be
proportionate to that attack for the purpose to stop or defend it.129
Second, international human rights law specifies that lethal force
necessary to achieve a legitimate objective and in a manner must
be proportionate to that objective.130Finally, proportionality in
129
Nicaragua case 1986 ICJ, Para 178 and Congo v Uganda case 2005
ICJ, Para 304
130
Article 2(2) 1950 European Convention on Human Rights
the rules of IHL regulating the conduct of hostilities expressly

prohibits attacks against a military objective if such attacks are
expected to cause incidental loss of civilian life, injury to
civilians, damage to civilian objects or combination thereof
which would be excessive in relation to the concrete and direct
military advantage anticipated.131 But some states that have not
ratified the AP 1 do not consider indiscriminate attacks
disproportionate. It is suggested that proportionality is broader
in nature under customary law,132 specific IHL protection
regimes133 or a ‘general principle’ of the law of armed conflict.134
This rule is applicable in both international and non-international
armed conflict as customary IHL.135 In order to determine whose
death is or injury to be considered as part of proportionality
assessment it is important to identify whether the conflict is
international or non-international.
- McCann and Others v. The United Kingdom, 1995, Para 148–149

- General Assembly resolution 34/169 of 17 December 1979.
131
Art. 51(5)(b) and 57(2)(b) of AP 1
132
Bartels, R. (2013), ‘Dealing with the Principle of Proportionality in
Armed Conflict in Retrospect: the Application of the Principle in
International Criminal Trials’, Israel Law Review, 46(2), p. 217, at p.
304
133
ICRC (2106), Commentary on the First Geneva Convention:
Convention (I) for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field, 2nd ed., Para 1353–1357, 1797
and 1987
134
Kleffner, J. (2018), ‘Military Collaterals and jus In Bello
Proportionality’, Israel Yearbook on Human Rights, Vol. 48, p. 43. See
also ILA Study Group Report, ‘Part II: The Principle of
Proportionality’, p. 27
135
Rule 14 customary IHL
PROPORTIONALITY UNDER IHL IN BROADER

SENSE:
Not every death or injury under IHL is to be considered as the

violation of rule of proportionality and even if it’s a death or
injury to civilian it is not totally necessary to be assessed it
through proportionality. To apply the rule of proportionality,
some requirements must be met. Firstly the attack causing the
incidental harm must be directed towards military objective and
attacking civilians and civilian objects under IHL is prohibited
under IHL. Secondly, the harm must be caused as a result of the
attack not every use of force is considered as attack in context of
proportionality, the weight of the incidental harm caused by the
attack, must be compared to the military advantage anticipated.
Thirdly, the incidental loss which means the death or injury of
civilians or destruction of civilian object must not be excessive.
This framework includes principle of distinction and precautions
for conducting proportionality assessment. It establishes balance
between principle of military necessity and humanity. The first
thing that an officer should have in mind before launching an
attack is that all the steps in launching an attack must be in
compliance with the rule of proportionality. The order of the
steps may not be same for the officers but their central idea must
always be principle of proportionality. It must be verified for the
proportionality assessment that the object of attack is a military
objective, precautions in choice of means and methods must be
taken to minimize the incidental harm and harm must not be
excessive. In order to conduct the proportionality assessment
properly some expressions must be understood in detail such as:
I. NOTION OF “ATTACK AS A WHOLE”:
According to article 49(1) of AP 1 the word attack means act of

“violence against the adversary”, whether offensive or defensive
but not in the context of jus ad bellum.136 For the purpose of
proportionality an attack is considered as a whole and not as an
isolated part of operation.137 Attack must be limited to military
objectives.138 If the military advantage anticipated is dependent
on a single act of attack and is not affected by other acts, then
that single act must be considered as “an attack as a whole” in a
proportionality assessment. But if a single act of attack is a part
of a large military operation where other acts contribute to
military advantage and is dependent or affected by those acts
than the entire operation is to be considered as “an attack as a
whole”.139 Even if there is a set of multiple attacks directed
136
Art. 49(1) of AP 1
137
Essentially identical declarations upon ratification of Additional
Protocol I were also made by Australia, Belgium, Canada, France,
Germany, Italy, the Netherlands, New Zealand, Spain and the UK.
See
https://ihldatabases.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewSta
tes=XPages_NORMStatesParties&xp_treatySelected=470. States that
are not parties to Additional Protocol I have also made similar
statements. For example, see U.S. Department of Defense (2016), US
Department of Defense Law of War Manual (‘US DoD Manual’),
December 2016, p. 264; and Israel Ministry of Foreign Affairs (2015),
The 2014 Gaza Conflict (7 July–26 August 2014): Factual and Legal
Aspects, May 2015, p. 181
138
Art. 52(2) of AP 1
139
This is the approach suggested by Bothe, Partsch and Solf, who
note that ‘an attack’ refers to: the co-ordinated acts of violence
against the adversary by a specific military formation engaged in a
toward a single target, it may constitute “an attack as a whole”

for proportionality assessment. Similarly, a set of attacks
directed toward multiple targets and military advantage of one
target is dependent in part or in full to the other targets
constitutes “an attack as a whole”. Proportionality assessment is
dependent on balancing both military advantage anticipated and
incidental harm expected. If series of repeated attacks are
causing cumulative incidental harm would render those attacks
unlawful.140 But if a single attack in series of attack is not
unlawful, but whole series of attack (combination of such lawful
attack) if they have cumulative effects in terms of incidental
harm and will be considered unlawful. If repeated attacks are all
causing high incidental harm then it will create doubt about
whether the attacking party was taking precautions or not to
minimize the incidental harm.
II. NOTION OF “ANTICIPATED MILITARY

ADVANTAGE”:
The advantage anticipated must not be political, economic or of
any other nature. It must be of military nature and must not affect
the morale of civilians under enemy’s control.141 The expected
military advantage must be identifiable, measurable and follows
specific military operation, rather than to each act of violence of the

individual combatants who are members of that formation. It does
not, however, exclude acts of violence by an individual combatant
such as a sniper acting alone, or a single bomber aircraft
140
Prosecutor v Kuperskic case 2000, Para 526
141
See, for example, MAMW, Commentary to Rule 1(w), para 4:
[m]ilitary advantage does not refer to advantage which is solely
political, psychological, economic, financial, social, or moral in nature
instantly after attack.142 Advantages that are not reasonably

confirmed to occur are not to be considered in proportionality
assessment. It is necessary to assign a weight to the military
advantage and to determine the livelihood is also necessary in
proportionality assessment that whether the anticipated military
advantage will actually occur or not.143 If the time period
between the attack and occurrence of military advantage is long
it will decrease the livelihood and weight of the military
advantage. The ICRC Commentary on the 1977 additional
protocols states that the expression “concrete and direct military
advantage” was intended to show that the advantage concerned
should not be substantial and relatively close, and that the
advantage which are hardly perceptible and those which would
only appear long term should be disregarded. Upon ratification
of AP 1 New Zealand and Australia stated that expression
concrete and direct military advantage means that positive
expectation that the attack will make a relevant and proportional
contribution to the objective of military attack involved144 Egypt
upon its signature to ICC Statute declared that term concrete and
direct military advantage means advantage anticipated by the
perpetrator at the time of attack and must be proportionate.145
Neither anticipated military advantage nor incidental harm can
be measured or calculated in quantitative methods. Military
advantage must be concrete and direct, proportionality
assessment must be based on harm that is expected to be caused
by an attack. The phrase “expected to cause” includes the
142
U.s military manual section 5.33.33
143
Prosecutor v Ante Gotovina case 2010, Para 549
144
New Zealand and Australia, Declaration upon ratification of AP 1
145
Egypt’s declaration upon signature to the ICC statute
questions such as which expected incidental harm must be

considered to be caused by an attack in the proportionality
assessment. Such expected incidental harm must be assigned a
weight to it and must not be excessive in relation to anticipated
military advantage.
CAUSATION AND FORESEEABILITY:
Causation means determining whether the expected incidental

harm is caused by the attack, while foreseeability means
determining whether the harm could have been expected at the
time of launching the attack. If there is a remote connection
between attack and incidental harm than it may not be included
in the proportionality assessment.146 AP 1 does not provide
guidance on how to understand causation and foreseeability for
the rule of proportionality. If we see in general then both terms
are considered after an event, but in proportionality assessment
the question of causation and foreseeability must be considered
before an event even before launching an attack. In a
proportionality assessment both of these things must be analyzes
separately as they are different from one another. Order that
which one of them is to be analyzed first in a proportionality
assessment varies from army-to-army. But two things must be
constant and are important. First, the causation in fact between
an action and its outcome. Second, the measures must be taken
to limit the scope of responsibility for any violation.147
146
MAMW, commentary to Rule 14, Para 4
147
See, for example, Plakokefalos, I. (2015), ‘Causation in the Law of
State Responsibility and the Problem of over -determination: In
Search of Clarity’, EJIL, Vol. 26(2), p. 471. At the domestic level, the
REQUIREMENTS FOR PROPORTIONALITY

ASSESSMENT:
CAUSATION:
Determining that if an attack is sole cause of the harm or not. If

it is, then determining causation will not be tricky. If the result
of attack is something which are expected then it would be
considered as the harm is actually caused by the attack.148
Military advantage must be direct for the purpose of
proportionality assessment but same is not required in case of
incidental harm. It doesn’t matters that harm occurs directly in
one step or series of step. If an attack damages an electric
generating station and prevents water purification process
causing incidental death to civilians will still be considered as
incidental harm was caused by the attack. The situation becomes
complicated and complex when a 3rd actor is involved in the
attack but it does not affects the fact that harm was caused by the
Principles of European Tort Law also take a two-step approach,

which first identifies criteria for establishing causation and then lists
factors for determining whether and to what extend damage maybe
attributed. European Tort Group (2005), Principles of European Tort
Law, ‘Chapter 3
148
This is the approach adopted in other areas of public international
law. See, for example, Cheng, B. (1987), General Principles of Law as
Applied by International Courts and Tribunals, 2nd ed., Cambridge:
Grotius, p. 245. The ILC Articles on Responsibility of States for
Internationally Wrongful Acts are not helpful in providing guidance
on how to determine whether something is a consequence of a
particular act. The Commission does not discuss how to establish
whether a particular outcome has been caused by a wrongful act
attack. But if the incidental harm is not actually result of

physical effects of the attack and is carried out with the
involvement of a person not carrying out the attack then such
attack is excluded from the proportionality assessment. In case
of human shield incidental harm to civilians will still be
considered as caused by attack even if placing the civilians there
as human shield was the conduct of enemy by the damage was
cause due to the physical effects of attack.149
FORESEEABILITY:
Foreseeability requires that the incidental harm that has occurred

must be expected at the time of planning or launching the attack.
It is the most appropriate requirement from identifying the
incidental harm to be taken in account.150 Foreseeability must
always be reasonable, which means that person in charge of
attack must foresee the expected military advantage will not
149
Discussion of differing view on position of human shield, Para 95-
98
150
The UK Military Manual, for example, notes that regard must also
be had to the ‘foreseeable effects’ of attacks. ‘Foreseeability’ is also
the criterion adopted in the Final Declaration of the Third Review
Conference of the Convention on Certain Conventional weapons.
Preamble paragraph 11 of the Declaration notes ‘the foreseeable
effects of explosive remnants of war on civilian populations as a
factor to be considered in applying the international humanitarian
law rules on proportionality in attack and precautions in attack’.
There is also widespread support for this criterion in writings. See,
for example, Bothe, Partsch and Solf (2013), New Rules for Victims of
Armed Conflicts, p. 351; and ILA Study Group Report, p. 23
cause excessive harm.151 Reasonable foreseeability means that

the expectations of incidental harm to be caused of the attack
must be reasonable or whatever is practically possible and not
merely imaginary. What can reasonably be foreseen depends
upon situations in which the attack is being planned or launched.
Factors like capabilities and resources available to belligerent,
whether the attack was pre-planned or not, context in which the
attack was planned and carried, time, weather, troops available
and enemy movement, all of these factors ones that help in
reasonable foreseeability. Information that the attacking party
possess plays vital role in foreseeability. All the information
available at that time about the target from all the reasonable
sources must be utilized to make a decision about the
assessment.152 The assessment must not only be based on
information available but also on information that can be
reasonably acquired by the attacking party. Relying on the
information available is the least standard to be met by
belligerent, if possible he may try to acquire more information
to use it in attack in proportionality assessment as it provides a
better analysis on judging the reasonable foreseeability.
151
Cheng (1987), General Principles of Law as Applied by
International Courts and Tribunals, pp. 249–51 and cases referred
therein
152
Essentially identical declarations upon ratification of Additional
Protocol I made by Australia, Ireland, Italy, New Zealand and the UK.
Israel, which is not a party to Additional Protocol I, takes the same
position.
-See Israel Ministry of Foreign Affairs (2015), The 2014 Gaza Conflict
LIVELIHOOD:
It is important in proportionality assessment to determine that

how likely will the expected or foreseen incidental harm will
actually occur. Foreseeability relates to whether particular
incidental harm can be expected to occur and revolves around
the expectation. But livelihood relates to that expectation will
become reality or not, it is based on probability of that particular
incidental harm will occur or not. Livelihood may vary from
case-to-case due to various factors such as location, dud-rate,
time or causal steps. Time length between attack and incidental
harm and number of steps between them can affect the livelihood
of the occurrence of harm.
INDIRECT HARM:
Incidental harm can occur in many ways and manifest in many

was as well. It can occur and manifest immediately after an
attack or it can occur immediately but manifest itself after some
time or it can occur and manifest after a long time from when the
attack way launched. The incidental harm that does not occur
immediately can be called indirect harm. Question raised here is
that whether such harm be included in the proportionality
assessment and if so to what extent should this harm be
considered in the assessment? What matters here is that harm
must meet the criteria of foreseeability and causation. The harm
must be caused due to the attack as a result of its physical effects,
it should not be caused due to the involvement of another actor.
The harm must also be seen expected on the basis of information
available at the time of attack in the circumstances at hand. There
must be weight assigned to such harm as well and livelihood is

also effected by the factors that can affect the livelihood of direct
attacks. . In the case of the toxic weapons, factors that can affect
the weight to be assigned to such harm include the expected
percentage of civilians exposed to the weapons can be expected
to develop the disease. In the case of the cluster sub-munitions,
considerations that could affect the weight assigned to the
expected incidental harm include the expected failure rate of the
sub-munitions and where they were used, whether it is in a
remote area, in cultivated areas or close to population centers, as
this will affect the number of people at risk of harm. Measures
must be taken to reduce such indirect incidental harm that is
expected to be caused by an attack. Regardless of such measures
may even be taken, there are some situations where such
incidental harm cannot be given the weight in the proportionality
assessment even if the harm is reasonably foreseeable on the
basis of reliable information.153 For example the measures that
the attacking party is planning to take is repairing the
infrastructure which is expected to be damaged to reduce the
indirect incidental loss caused. By there is no confirmation that
they will be in position or gain control of that infrastructure in
order to make such repairs.
WEIGHT:
153
See, for example, the discussions at the ICRC/Laval meeting,
where many experts considered that such measures were ‘too
speculative’ to affect proportionality assessments. ICRC/Laval
Report, pp. 49–51
Assigning weight means to preclude the gravity, value or amount

to something. One it is confirmed that there will be incidental
harm in the operation, a value of weight is to be assigned to it
for the proportionality assessment. Weight of anticipated
military advantage is to be balanced with the weight of incidental
harm that is expected to occur to determine that whether the
harm will be excessive or not. The lower the livelihood of the
harm the lower the weight is to be given to the harm.154 Weight
of the attack also assists in determining the severity of the attack
that whether it will a damage the neighboring sites which are
civilian objects like cultural property or places of worship.155 If
the attack is expected to harm the civilian objects or civilians that
there must be greater weight assigned to such harm. While
assigning weight, the adverse effect of the harm on civilians
must also be considered. Displacement of civilians does not
constitute incidental harm per se. However, the fact that
displacement is likely to occur as a result of an attack expected
to destroy civilian homes affects the weight to be given to that
destruction.
154
Prosecutor in The Prosecutor v Ante Gotovina, et al., Prosecution’s
Public Redacted Final Trial Brief, 2 August 2010, para 549:
‘Concrete and direct advantage anticipated’ is not the value of the
target wholly in the abstract but rather its abstract value relative to
the likelihood of in fact neutralizing or destroying the object.
Similarly, the weight of the collateral damage on the other side of
the equation is relative to its certainty or likelihood
155
O’Keefe, R., Péron, C., Musayev, T. and Ferrari, G. (2016),
Protection of Cultural Property Military Manual (‘Cultural Property
Military Manual’), UNESCO, para 114
EXCESSIVE INCIDENTAL HARM:
The excessive harm to civilians is prohibited under IHL and is

considered disproportionate under AP 1 of GC. If the incidental
harm is excessive as compared to military advantage gained than
it would amount to a war crime under ICC Statute.156
Determining that whether the damage is excessive or not require
comparing military advantage with incidental harm and it is the
most challenging thing in proportionality assessment. It is
necessary to determine whether ‘a reasonably well-informed
person in the circumstances of the actual perpetrator making
reasonable use of the information available to him or her, could
have expected excessive civilian casualties to result from the
attack’.157 Excessive is indeed a wide term but it is not
impossible to determine. Bombing an isolated fuel tanker in the
middle of a densely populated city would be excessive,158 while
156
Article 8(2)(b)(iv) ICC Statute defines the war crime as:
(a) 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.
Note that the corresponding grave breach in Article 85(3)(b) AP I
reflects the rule in the Protocol on this point, and refers to
‘excessive’ incidental harm:
(b) 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, as defined in Article 57, paragraph 2 (a) (iii).
157
Prosecutor v Galic case 2003, Para 58
158
Le Ministère de la Défense Belgique (2009), Droit des Conflits
Armés; Manuel du Cours pour Conseiller en Droit des Conflits Armés,
Vol. VI, p. 14. This example seems to make implicit assumptions
an airstrike against an ammunition depot beside a farmer

plugging a field would not be.159 Commander in good faith do
whatever he has to in order to collect all the possible and
reasonable information for their assessment in a manner which
is reasonable.160 Some chambers consider the attacks to be
excessive and disproportionate but did not identified that how
they concluded it.161 Later in some judgment the ICTY appeal
chamber confirmed that the trail chamber’s analysis regarding to
proportionality was flawed162 and did really addressed
proportionality correctly.163 In 2005, the Israeli High Court gave
some hypothetical examples that if a sniper were shooting at
about relatively low military advantage and relatively high incidental

harm. It should not be taken to suggest that the circumstances it
describes would inevitably violate the rule of proportionality: an
assessment of proportionality depends on the particular facts of a
situation and must be conducted on a case-by-case basis
159
Canada (2001), Joint Doctrine Manual: Law of Armed Conflict, at
the Operational and Tactical Levels, B-GJ-005- 104/FP-021, para
204.6
160
ICRC Commentary to APs, Para 2210
161
For example, ICTY, Prosecutor v Blaškić, IT-95-14-T, Judgment
(Trial Chamber), 3 March 2000 (Blaškić Trial Judgment), para 651;
ICTY, Prosecutor v Milutinović et al., IT-05-87-T, Judgment (Trial
Chamber), 26 February 2009, para 920
162
In Gotovina et al., the ICTY Appeals Chamber held, by majority,
that the Trial Chamber’s analysis that ‘the attacks on Martić involved
a lawful military target was not based on a concrete assessment of
comparative military advantage, and did not make any findings on
resulting damages or casualties’. ICTY, Prosecutor v Gotovina,
Čermak and Markač, IT-06-90, Judgment (Appeals Chamber), 16
November 2012, para 82
163
In Prlic et al., the ICTY Appeals Chamber quashed the Trial
Chamber’s finding with regard to the Old Bridge
soldiers or civilians from his porch, shooting at him would not

violate the rule of proportionality even if, as a result, a civilian
neighbor or passerby were harmed. That would not be the case
if the building were bombed from the air and scores of its
residents and passersby were harmed.164 A 2010 decision by the
German Federal Prosecutor not to initiate a prosecution in
relation to a NATO airstrike in Afghanistan included an
incidental discussion of proportionality. The decision related to
an aerial attack with two 500-pound bombs against two tankers,
transporting fuel for NATO had been stolen by the Taliban.
According to the Federal Prosecutor, the anticipated military
advantage had been ‘on the one hand the final prevention of
using the fuel and the fuel tankers as “driving bombs” or to fuel
the insurgents’ militarily used vehicles and on the other hand the
at least temporary disruption of the Taliban’s regional command
structure’, because a ‘high-level regional commander’ was
among the Taliban present. The Federal Prosecutor considered
that even if the killing of several dozen civilians would have had
to be anticipated from a tactical-military perspective this would
not have been out of proportion to the anticipated military
advantage.165 Whether the incidental harm will be excessive
does not depends upon calculative formula but on the decision
and judgment of the officer in good faith and reasonable manner.
164
Israel, High Court of Justice, The Public Committee against Torture
in Israel v The Government of Israel, HCJ 769/02, Judgment, 11
December 2005, para 46
165
Prosecutor General to the German Federal Court of Justice, Fuel
Tankers case, 3 BJs 6/10-4, 16 April 2010. Unofficial translation by
the ICRC
INCIDENTAL HARM:
The harm will only be considered incidental harm if the harm is

caused to civilian or civilian objects at the time when they were
not taking direct part in hostilities otherwise it will not be
included in the incidental harm for the purpose of the assessment
as those civilians will become a legitimate target if they
participate directly in hostilities. The persons who perform
combat functions as regular armed forces and those who are
members of organized armed groups are not considered as
incidental harm. A civilian if killed or injured during taking
direct part will not be considered as incidental harm but if they
stop taking part in hostilities and retain their protected status they
will be considered as incidental harm in assessment. In case of
forceful human shield the loss of life or injury to the civilians
being used as human shield will be included as incidental loss in
assessment. But in case of willingly human shield there are two
views. First one is that they even if the civilians are willingly
misusing there protected status but are not participating in
hostilities and are to be considered as incidental harm if they die
or become injured.166 The second one is that even though they
are not participating in hostilities still they do contribute in
military action in direct casual way, this account to direct
participation and are not to be considered as incidental loss in
proportionality assessment.167 A mediocre approach in this
166
ICRC Guidance on direct participation in hostilities 2009. Pp. 56-
57
167
Schmitt M 2009, human shield in international law, Israel year
book in human rights, volume 38, P. 7 at P. 41
matter also exist which suggests that in such case the weight of
the incidental harm will reduce and the as the party using human
shield is also violating its obligation and should not benefit from
it.168 Hors de combat, peacekeeping forces, non-combatant
members and wounded or sick of armed forces are also included
in incidental harm category if dead or injured by an attack.
There is a difference between injury (caused by external forces)

and disease.169 Both injury and disease are part of incidental
harm if caused to civilians. In case of mental injury there is a
huge discussions by states whether such harm is to be included
in the assessment or not.170 Most of the states do not consider
such harm as incidental harm in proportionality assessment,171
168
U.S military manual, Para 5.22.1
169
According to the Oxford Concise Medical Dictionary, a ‘disease’ is:
a disorder with a specific cause (which may or may not be known)
and recognizable signs and symptoms; any bodily abnormality or
failure to function properly, except that resulting directly from
physical injury (the latter, however, may open the way for disease).
It is often contrasted with illness, where the abnormal symptoms,
thoughts, or feelings may be subjective and difficult to assess
objectively
170
At present, the most comprehensive analysis of mental harm and
IHL are Lieblich (2014), ‘Beyond Life and Limb’, and Knuckey,
Moorehead and McCalley (forthcoming 2019), ‘Should the
Proportionality Rule Include Mental Harm?’. See also Schmitt, M.
and Highfill, C. (2018), ‘Invisible Injuries: Concussive Effects and
International Humanitarian Law’, Harvard National Security Journal,
Vol. 9, p. 72
171
Nevertheless, there is some practice. The discussion of ‘collateral
damage considerations’ in NATO Joint Targeting Doctrine, for
example, refers to psychological effects. See NATO Standard AJP-3.9
Allied Joint Doctrine for Joint Targeting (2016), 1-10, para 0125
because it will make the assessment more complex and it will be

hard to determine the causation, foreseeability, weight and
livelihood of mental harm. It is suggested that belligerents must
consider mental harm in their assessment if possible.
Severity of the harm is also important to be considered as it will

but weight to be assign to the incidental harm. If an attack causes
severe injury to the civilians and the medics can only provide
with basic medical treatment to the injured, in such case there is
a high possibility that those injured can die. So, these situations
are to be considered in the assessment as well.
The destruction of dual status objects, civilian objects, cultural

objects and religious objects is also part of assessment as
incidental harm. There may be circumstances in which an object,
in addition to being used for military purposes, continues to have
a civilian function. For example, an electrical power station may
supply both a military compound and a hospital. In these
circumstances, the object is sometimes colloquially referred to
as a ‘dual-use object. In such case the adverse effect of the attack
on the civilian function of the object must be considered in the
assessment. But if that adverse effect to the civilian function
does not harm any civilian or civilian object then it should not
be considered in the assessment. If a one-room school is used as
a military communications center and therefore becomes a
military objective, belligerents would be required to somehow
give weight to the impairment of its educational function in
proportionality assessments.172 Feasible measures must be taken
172
See, for example, the discussions at the ICRC/Laval expert
meeting, ICRC/Laval Report, pp. 38–40; and ILA Study Group Report,
pp. 11–12
to avoid or minimize such adverse effects to the civilian

functions of the object at the time of attack. Even if some civilian
objects such as cultural object, hospitals, places of worship
become military objective but still IHL puts limitations on
attacking such buildings.
Objects which are necessary for human survival, water,

agricultural areas and forests are to be included as incidental
harm in the assessment.as destruction of such areas of land will
affect civilians as well, whether directly or indirectly.173 Use of
such natural environment areas for military purposes may make
them a military objective.174 But until then these objectives are
to be considered in proportionality assessment.175 Damage to
173
See, for example, Schmitt, M. (1997), ‘Green War: An Assessment
of the Environmental Law of International Armed Conflict’, Yale
Journal of International Law, Vol. 22, Issue 1, p. 1, pp. 6–7
174
Article 52(2) AP I defines military objectives as those objects which
by their nature, location, purpose or use make an effective
contribution to military action and whose total or partial destruction,
capture or neutralization, in the circumstances ruling at the time,
offers a definite military advantage. No element of the environment
will be a military objective by its ‘nature’, i.e. its intrinsic character.
See Droege and Tougas (2013), ‘The Protection of the Natural
Environment in Armed Conflict’, p. 27
175
This is expressly noted in the definitions of ‘collateral damage’ in
a number of texts. See, for example, the San Remo Manual on
International Law Applicable to Armed Conflicts at Sea, Section 13.4,
which expressly includes damage to or destruction of the natural
environment in the definition of ‘collateral damage’. This definition
is replicated in the sections of the UK Military Manual on maritime
warfare, at 13.5. See European Union Military Committee (2016),
Avoiding and Minimizing Collateral Damage in EU-led Military
environment and its effects on civilians may be immediate or

not. Such harm is already accepted as incidental by some
states.176 Use of means and methods which can harm
environment severely for long time177 and may affect the civilian
health and survival negatively.178
Attack on object that may damage cultural property nearby is

prohibited if it is expected to cause excessive damage and is to
be suspended at once after being verified.179 There are cases in
which cultural property may become a military objective by its
nature such as historical fortress, arsenal, barracks and other
historical objects of military ends. In these cases the rule of loss
of civilian status applies on these cultural objects in the same
way as they do to an ordinary civilian object.180 If these cultural
become military objective then these objects will not account as
incidental harm in proportionality assessment. But if they remain
civilian then their protection must be taken into account.
Operations Concept, EEAS (2015) 772 Rev 8, 3 February 2016, para

15
176
See, for example, US Chairman of the Joint Chiefs of Staff
Instruction (2012), No-Strike and the Collateral Damage Estimation
Methodology, D-A-10.: US Joint Publication 3-06, Joint Urban
Operations, 20 November 2013, ‘Collateral Damage and
Environmental Considerations’, III-11; and 2016 NATO Allied Joint
Doctrine for Joint Targeting, para 0122
177
Art. 35 (3) of AP 1
178
Art. 55(1) of AP1 and Rule 45 ICRC CLS as customary law
provisions
179
Art. 7(c) and (d)(ii) 1999 second optional protocol to Hague
Convention 1954
180
Cultural property military manual, Para 88
Even the damage to the civilian object will constitute the

incidental harm and there is no requirement of total destruction.
Weight is to be assigned in the assessment on the bases of
damage expected or caused. The more the object is valuable to
civilians the more the weight must be assigned. The weight
assigned to the damage to a hospital will be greater than the
weight assigned to the damage to the office building. Weight to
be assigned is also dependent on the number of civilian deaths
or adverse effect on civilians expected to be caused from the
destruction of a civilian object.
CANCELLATION OF ATTACKS DISPROPORTIONATE
If an attack is disproportionate as per the proportionality

assessment then it is the obligation of all those who are in
position to determine must refrain or cancel such attack.181 Those
who are executing the attack are not likely to have authority to
revise proportionality assessment.182 But there is an obligation
not to obey any unlawful order.183 Information must be gathered
and analyzed effectively till the last moment.184 Those executing
the attack become aware of some facts that could affect the
181
See, for example, UK Military Manual, para 5.32.9
182
Schmitt and Merriam (2015), ‘The Tyranny of Context’, p. 81
183
This consideration is reflected in the reservation to Article 57(2)
AP I made by the UK upon ratification of Additional Protocol I: The
United Kingdom understands that the obligation to comply with
paragraph 2(b) only extends to those who have the authority and
practical possibility to cancel or suspend the attack. See also UK
Military Manual, 5.32.10
184
proportionality assessment must report those facts to authority

in-charge of the attack. This information include location of
civilian and civilian object (data on population, density, day-
time and night-time activities and nearby areas), weapon (size,
weight, type, accuracy, blast, range and fragments), construction
information (material, condition, strength and adverse effect of
targeted objects), medical and public health information.
UNIT: III
COMBATANTS
DEFINATION:
The term “combatants” used in the Art 48 of AP 1 and Rule 1 of

Customary IHL in general means persons who do not enjoy the
protection against the attack that is provided to the civilians185.
According to the rule 3 of customary IHL and Art 43(3) of AP 1
all the members of the armed forces of a party to the conflict who
have right to participate directly in hostilities are combatants,
185
Definition of combatants in Vol. 1 of the summary of customary
International Humanitarian Law by Jean-Marie Henckaerts and
Louise Doswald-Beck
except civilians, medical and religious personnel186, chaplains187

and mercenaries188. But for a person to be considered a
combatant should be under responsible command on behalf of
one party189. Combatants can be members of armed forces,
volunteer corps or member of militias, levee en masse and non-
combatants or civilians taking direct part in hostilities190. There
is a difference between combatants, non-combatants and
civilians. Combatants are the persons who are legitimate military
targets during an armed conflict and have right to participate in
an armed conflict plus they take direct part in hostilities i.e.
participating in use of weapon or a weapon system in an
indispensable function.191 Children under the age of 15 are not
qualified to be part of any armed forces as combatant under IHL,
while in some countries combatants are drafted from entire
population between certain ages into the armed forces in the
event of armed conflict and are considered as combatants.192
Combatants who are part of armed forces are always a legitimate
target and they do not become protected person when they are
not on the battle field.
186
Rule 3 of customary IHL
187
Art. 43 of AP 1
188
Art. 47 of AP1
189
190
Art. 4 of GC 3
191
Germany, military manual volume II chapter 1
192
The conclusion of discussion during second consultation with
academic and governmental experts in the framework of this study
in May 1999 and general agreement between the experts to this
effect
Kordić and Čerkez case of ICTY:
In its Judgment in the Kordić and Čerkez case in 2004, the

ICTY Appeals Chamber stated that Particular attention has to be
paid to the situation of members of a Territorial Defense (TO)
and as to whether they are to be considered as combatants at all
times during the conflict or only when they directly take part in
hostilities, that is, when they participate in acts of war which by
nature or purpose are likely to cause actual harm to the personnel
and equipment of the enemy's armed forces. The Appeals
Chamber considers that members of the armed forces resting in
their homes in the area of the conflict, as well as members of the
TO residing in their homes, remain combatants whether or not
they are in combat, or for the time being armed.193
Colombian Constitutional Case 2007:
The term “combatants” has both a generic and a specific

meaning under international humanitarian law. In its generic
sense, the term refers to persons who belong to the armed forces
or irregular armed groups or take part in hostilities and thus do
not enjoy the protection against attacks afforded to civilians. In
its more specific sense, the term “combatants” is used only
within the context of international armed conflicts and in
reference to a special status, the “combatant status” that not only
implies the right to take part in hostilities and the possibility of
193
Kodric and Cerkez case
being considered a legitimate military objective, but also the

ability to confront other combatants or persons taking part in
hostilities and the right to receive special treatment when
placed hors de combat by surrendering, being captured or
wounded. This Court states that for purposes of the principle of
distinction and its application to internal armed conflicts and the
rules which flow from this principle, international humanitarian
law refers to the term “combatants” in its generic sense. It is
beyond doubt that the term “combatants” in its specific sense as
well as related legal statuses such as “prisoner of war” do not
apply to internal armed conflicts.194
NON-COMBATANTS:
Non-combatants and civilians are not basically a legitimate

military target under the laws of armed conflict and are protected
persons from attacks of adverse party. They do not lose their
protected status until they participate directly in hostilities, and
when they do they lose their protected status.195 Non-combatants
are members of armed forces who do not participate directly in
hostilities, there job may to some extent be considered as an
indirect participation in hostilities such as medical and religious
personnel, civil defense personnel and incorporation of
paramilitary or armed law enforcement agencies.
194
Colombian Constitution Case 2007
195
Art. 51(2) of AP 1
Korbely v Hungary case:
In this case, Thomas Kaszas’s side argued that he should not be

charged as he did possess the handgun but he did not use it to
take part in hostilities and was a non-combatant. The court
therefore held that Kaszas did not fall under the categories of a
non-combatant and has been convicted for the incorrect
classification as a non-combatant. The court observed that he
was the leader of an armed group of insurgents and is non to be
acquitted on the ground that whether he drawn his gun or not,
the fact that he had a gun is enough to convict him.196
Indian Supreme Court Judgment:
In 1975, the Supreme Court of India held that civilian employees

of the armed forces are “integral to the armed forces as it is their
duty to follow or accompany the armed personnel on active
service or in camp or on the march”. They are however “non-
combatants”. The Court further stated: “all persons not being
members of the armed forces, but attached to or employed with
or following the regular army shall be subject to the military
law”.197
196
Korbley v Hungry case
197
Indian Supreme Court Case 1975
Prosecutor v Petkovic case:
In this case the defense argued that the Muslim men of the age
between 16 and 60 who were detained were reservists who were
part of the ABiH as non-combatant members of the forces, and
were afforded with the protection applicable to the P.O.W
because according to the national law applicable at that time the
non-combatants are to be given the status of P.O.Ws. the court
declared that even if they were reservists in the armed forces as
the non-combatants under national law, but they did not fit under
the definition of the members of armed forces under IHL until
they conduct any hostile act.198
RELIGIOUS PERSONNEL:
According to the Art 8(d) of AP 1 Religious Personnel means

persons such as chaplains who engage in their work of their
ministry and are attached to the armed forces, medical units or
medical transport persons. Such persons are respected and
protected from the attacks of enemy.199
MEDICAL PERSONNEL AND UNITS:
Even if the combatants are in the medical unit for the medical
reasons and they do not commit any act harmful to the enemy
they remain protected as non-combatants200, according to the 1st
GC even if non-combatants are temporary medical personals still
198
Prosecutor v Petkovic case
199
Art. 15(5) of AP 1
200
Art. 12, 13(2)(d) and 15 of AP 1
they are to be protected unless their medical assistance is over

and they take direct part in hostilities201 and if they do their status
will discontinue as no-combatant202.
Mukhtar Yahia Maji Al Warafi case:
In this case Al Warafi who was a taliban appealed against the

judgment of district court of U.S. district court in its remand
stated that Al Warafi wore no such armlet and carried no such
card for that reason he must prove his status as permanent
medical personnel. Nothing prevents parties like Taliban to
provide medical personnel with identification card required by
Article 40, thus until the Al Warafi is proven to be entitled to the
status of protected person, he is to be considered a terrorist. The
court in its conclusion upheld the judgment of district court on
the grounds that the applicant has not proven his permanent non-
combatant status as medical personnel before the court.203
CIVIL DEFENSE PERSONNEL:
U.S and German military Manuals highlight that there are non-
combatants other than just religious and medical personnel, U.S
handbook states that civil defense personnel and members of
armed forces who have acquired civil defense status are non-
combatants in addition to religious and medical personals204, But
if they commit any act outside their regular proper tasks which
201
202
Art. 13 of AP 1
203
Mukhtar Yahia Maji Al Warafi case
204
U.S military naval handbook
is harmful to the enemy, or they are co-operating or operating

under the authority of military, or their acts provide benefit and
service to any military personnel then they will lose their
protection under Art 65 of AP 1205, carrying of light individual
weapon by civil-defense forces for the purpose of protecting
civilians will not constitute as an act harmful to the enemy.206
INCORPORATION OF PARAMILITARY OR ARMED LAW

ENFORCEMENT AGENCIES:
The role of these incorporations in an armed conflict is usually

carried out through formal acts such as acts of parliament. The
status of such agencies that whether they are combatants or non-
combatants depends upon if there acts are outside the ambit of
their regular formal actions and they start participating in direct
hostilities then they will not be considered as non-combatants,
according to AP 1 it is required from parties to armed conflict to
notify the other party about such incorporations207. France and
Belgium has notified this to all the parties ratified to the AP 1.208
Germany’s military manual define non-combatants as persons

who do not have any combat mission but are members of armed
forces such as judges, governmental officials and blue collar
workers209. Apart from the strict definition of non-combatant
205
Art. 65 of AP 1
206
Art. 65(3) of AP 1
207
Art. 43(3) of AP 1
208
Belgium and France declaration made upon the ratification of AP
1
209
Germany, military manual, volume II chapter I
related to the part of armed forces some other persons who are
not part of any armed force during an armed forces are also
considered no combatants and are immune from any attack such
as members of ICRC.
CIVILIANS:
Non-combatants are however not to be confused with civilians

accompanying the armed forces who are not members of armed
forces such as civilian members of military aircraft crew, supply
contractors or other services responsible for the welfare of armed
forces210 or other civilian in general IHL meaning. Generally
civilians are person during an armed who do not directly
participate in hostilities and does not have right to participate in
hostilities or is not part of an armed force211.
In a report on human rights in Colombia, the inter-American

Commission on Human Rights tried to distinguish taking
“direct” from “indirect” participation:
Civilians whose activities merely support the adverse party in an

armed conflict or are merely participating in the hostilities in
indirect sense cannot be considered as combatants. Because
indirect participation include selling goods to armed forces or
expressing sympathy to an armed party does not involve acts of
210
Art. 4 A(4) of GC 3
211
Art. 50 of AP 1
violence which poses threat of harm to the adverse party.212

Several military manuals specify that civilians working in
military objectives, for example, munitions factories, do not
participate directly in hostilities but must assume the risks
involved in an attack on that military objective.213 The
legitimacy of attacking such person is to be judged on the chain
of events that person should be one step away from executing
harm.214 The injuries or death caused to such civilians are
considered incidental to an attack upon a legitimate target which
must be minimized by taking all feasible precautions in the
choice of means and methods, for example, by attacking at night
(see Rule 17). The US Naval Handbook states that direct
participation in hostilities must be judged on a case-by-case
basis. Combatants in the field must make an honest
determination as to whether a particular civilian is or is not
subject to deliberate attack based on the person’s behavior,
location and attire, and other information available at the time.215
Many military manuals state that the presence of civilians within
or near military objectives does not render such objectives
immune from attack216. This is the case, for example, of civilians
212
Inter-American Commission on Human Rights, Third report on
Human Rights in Colombia
213
See, e.g., the military manuals of Australia (cited in Vol. II, Ch. 2, §
635), Canada (ibid., § 636), Colombia (ibid., § 637), Croatia (ibid., §
638), Ecuador (ibid., § 639), Germany (ibid., § 640), Hungary (ibid., §
641), Madagascar (ibid., § 642), Netherlands (ibid., § 643), New
Zealand (ibid., § 644), Spain (ibid., §§ 645–646), Switzerland (ibid., §
647) and United States (ibid., § 648)
214
ICRC interpretation 2005
215
U.S Naval Handbook
216
See, e.g., the military manuals of Australia (ibid., § 635), Canada
(ibid., § 636), Colombia (ibid., § 637), Croatia (ibid., § 638), Ecuador
working in a munitions factory. This practice indicates that such

persons share the risk of attacks on that military objective but are
not themselves combatants.
Kononov v Latvia case:
In this case two issues regarding to the statuses of the persons

were discussed. One was the status of the applicant as the
combatant and the other one was the status of persons killed in
the event of conflict as civilians. The court was not satisfied that
those persons killed were civilians according to the Art 50 of AP
1 although it was true that there is a presumption that in case if
a person is not a combatant he should be considered as civilian,
however this protocol was introduced after more than 30 years
after the event took place and applying it would be retrospective
to the court and there is no reason to consider that those civilians
were unlawful targets as they participated in hostilities
temporarily.217
(ibid., § 639), Germany (ibid., § 640), Hungary (ibid., § 641),

Madagascar (ibid., § 642), Netherlands (ibid., § 643), New Zealand
(ibid., § 644), Spain (ibid., §§ 645–646), Switzerland (ibid., § 647) and
United States (ibid., § 648)
217
Kononov v Latvia case ECHR
CLASSIFICATION AND STATUS OF COMBATANTS

AND THEIR RIGHT TO BE TREATED AS P.O.Ws:
In terms of status and classification of Combatants is defined

under the art 4 of 3rd GC as members of armed forces, militias,
voluntary cops forming part of armed force and levee en masse.
Non-combatants and civilians are also classified as if they
directly engage in any hostile acts harmful to the adverse party
and would be given the status of P.O.Ws when they become hors
de combat. Under the Statute of the International Criminal Court,
“killing or wounding a combatant who, having laid down his
arms or having no longer means of defense, has surrendered at
discretion” is a war crime in international armed conflicts.218 The
prohibition on attacking persons recognized as hors de combat
is set forth in numerous military manuals.219
Some other persons who may not be given the status of

combatants but are still given the status of P.OWs on their
capture such persons include civilian members of military
aircraft, supply contractors, service units, crew of civilian
218
Art. 8(2(b)(iv) of ICC Statute
219
See, e.g., the military manuals of Argentina (ibid., § 126), Australia
(ibid., §§ 127–128), Belgium (ibid., §§ 129–130), Benin (ibid., § 131),
Cameroon (ibid., § 132), Canada (ibid., § 133), Colombia (ibid., §§
135–136), Croatia (ibid., §§ 137–139), Ecuador (ibid., § 140), France
(ibid., §§ 141–143), Hungary (ibid., § 144), Israel (ibid., §§ 145–146),
Italy (ibid., §§ 147–148), Kenya (ibid., § 149), Madagascar (ibid., §
150), Netherlands (ibid., § 151), New Zealand (ibid., § 152),
Philippines (ibid., § 153), Romania (ibid., § 154), Russia (ibid., § 155),
South Africa (ibid., § 156), Spain (ibid., § 157), Sweden (ibid., § 158),
Switzerland (ibid., § 159), Togo (ibid., § 160) and United States (ibid.,
§§ 161–162).
aircrafts or pilots or merchants marines or masters of the crew ,

or services responsible for the welfare of armed forces.220
Any combatant who falls into the hands of adverse party are to
be considered as P.O.Ws if he is wearing uniform as symbol of
distinction and are not to be deprived from such status just
because he has violated the laws and customs of armed conflict,
that person is still a combatant and has the right to be given the
status of P.O.W. If a person who is regular combatant and is not
taking an active part in hostilities or military operation at that
time when he is captured remains under the status of combatant
and must be considered P.O.W when he throws down his
weapon.221
ARMED FORCES:
Armed forces to an armed conflict are comprised of organized

armed forces, groups and units operating under the command of
responsible authorities of parties to an armed conflict operating
under the disciplinary manner provided by the laws and customs
of IHL regardless of its recognition by the adverse party. All the
persons who are part of armed forces with the right to participate
in hostilities are considered as combatants.222
220
Art. 4 of 3rd GC
221
Art. 44 of AP 1
222
Art. 43 of AP 1
MILITIAS AND VOLUNEER CORPS:
Members of volunteer corps and militias including those of

organized resistance movement, belonging to the party to the
armed conflict who are operating inside or outside their territory
even if their territory is occupied, they are to be considered as
combatants if they are operating under the command of superior
responsible authority and they have the distinctive emblem
visible from distance and they must carry arms openly and must
be operating in accordance with the laws and customs of war, if
these requirements are fulfilled then they must be given the
status of P.O.W when they fall under the hands of enemy.223
Countries where militia or volunteer corps (so-called “irregular”
armed forces) constitute the army, or form part of it, they are
included under the denomination “army”.224
Public Committee against Torture in Israel case:
In its judgment in the Public Committee against Torture in Israel

case in 2006, Israel’s High Court of Justice provided the criteria
that make a person a combatant. This category includes, of
course, the armed forces. It also includes people who fulfill the
following conditions (The Hague Regulations, §1). The laws,
rights, and duties of war apply not only to armies, but also to
militia and volunteer corps fulfilling the condition to be
commanded by a person responsible for his subordinates, to have
a fixed distinctive emblem recognizable at a distance, to carry
223
Art. 4(2) of 3rd GC
224
Art. 1 of Hague regulations
arms openly; and to conduct their operations in accordance with

the laws and customs of war. Court further stated that these
conditions are examined in the legal literature, as well as
additional conditions which are deduced from the relevant
conventions. We need not discuss all of them, as the terrorist
organizations from the area, and their members, do not fulfill the
conditions for combatants. It will suffice to say that they have no
fixed emblem recognizable at a distance, and they do not conduct
their operations in accordance with the laws and customs of
war.225
Hostage Trail Case:
In this case it was held that in case if a combatant violates the

rule of international law applicable during an armed conflict,
does not deprive such combatant from the status and right to be
treated as P.O.W. However under Hague Regulations, this does
not apply to the militias and volunteer corps, unless they gave
the evidence in the field that they did indeed fulfill the conditions
provided by IHL and acted according to the customs and laws of
war in their operations.226
225
Public Committee against Torture in Israel case
226
The Hostages Trail case
LEVEE EN MASSE:
Inhabitants of a non-occupied territory who are approached by

the enemy and to defend their territory against the enemy
invasion and they take arms to resist against the occupation of
their state territory, even if they are not part of regular armed
forces but due to the necessity of the situation they are also given
the status of combatants and P.O.Ws on falling under the hands
of enemy, but they are required to respect the laws and customs
of war and must be carrying arms openly as per rule 106 of
customary IHL.227 This is a long-standing rule of customary
international humanitarian law already recognized in the Lieber
Code228 and the Brussels Declaration229. It is codified in the
Hague Regulations,230 although of limited current application,
the levee en masse ´ is still repeated in many military manuals,
including very recent ones.231 In certain circumstances, persons
who participate in upspring to defend their territory must be
given the status of combatants as are militias and volunteer corps
and members of resistance movement and are to be given the
status of P.O.Ws.232
227
Art. 4 A(6) of GC 3
228
Art. 49 and 51 of Lieber Coder
229
Art. 10 of Brussels Declaration
230
231
See, e.g., the military manuals of Benin (cited in Vol. II, Ch. 1, §
714), Cameroon (ibid., § 715), Canada (ibid., § 764), Kenya (ibid., §
728), Madagascar (ibid., § 729), South Africa (ibid., § 731) and Togo
(ibid., § 734)
232
Switzerland’s ABC of IHL 2009
PROTECTED PERSONS TAKING DIRECT PART IN

HOSTILITIES:
Civilians and non-combatants who take direct part in hostilities

lose their status as protected persons and acquire the status of
combatants. On falling into the hands of adverse party such
person is to be treated as P.O.W if he claims such himself or the
armed party notifies that he is entitled to such status and shall be
protected under the provisions of 3rd GC.233 In case of doubt
about his status that person must be treated as P.O.W until and
unless his status is confirmed by the tribunal competent to do so.
If the adverse party does not considers him as P.O.W and tries
to prosecute that person then he should be given right to prove
his status before the court by fair trail and is not to be prosecuted
for hostilities until its proved that he does not has the status and
rights of P.O.W.234
Prosecutor v Bemba Gombo:
In this case the court made some important interpretations

regarding to the civilians and their protection. It was held that in
case of doubt that whether a person is civilian or combatant, that
person must be considered as civilian until the actual status is
determined. To determine the status the court held that relevant
facts must be considered and specific situation of victims at
relevant time, including the location of murders, whether the
victim was carrying weapons, and clothing, age and gender of
233
Art. 45(1) of AP 1
234
Art. 45(2) of AP 1
the victims to determine whether they were actively participating

in hostilities or not.235
In this case defendant was accused for several charges and one
of the injuring the driver of the Municipal Crisis Staff who was
a civilian named Valjalo. The defense argued that the driver was
taking active part in hostilities at the time attack. The court
declared that although the injury to Valjalo and Ivo Vlasica was
the result of a proportionate attack, it was necessary to determine
that they were not a combatant. They were not a legitimate target
as they were not taking part in hostilities. If they had taken part
in hostilities they would have lost their status protected
persons236
LOSING OF RIGHT TO BE TREATED AS P.O.Ws:
According to the principle of distinction combatants must follow

their obligation to distinguish themselves from the civilians and
non-combatants for the purpose of protecting those protected
persons when they are engaging in the military operations and
participating in the hostilities in direct manner. For such purpose
of distinction they must carry arms openly and must me wearing
the distinct symbol or uniform so their emblem become visible
from a far distance to the adverse party237. If they fail to
235
Prosecutor v Bemba Gombo case
236
Prosecutor v Strugar case
237
Art. 44(3) of AP 1
distinguish themselves from the protected persons, they will lose

their right to be treated as the P.O.W but should be treated almost
equivalent to the P.O.Ws, but they are not immune from being
prosecuted through fair-trail by a competent court.238
Kononov v Latvia case:
In this case two issues regarding to the statuses of the persons

were discussed. One was the status of the applicant as the
combatant and the other one was the status of persons killed in
the event of conflict as civilians. The court found out that
applicant had use the enemy uniform to induce the enemy and
had lost the status of combatant. However he was not charged
for this act separately and declared that he was entitled to the
status of combatant.239
Kassem case:
In the Kassem case the Israel military court held that defendants
fulfilled the requirement of wearing the distinct uniform as their
uniform was different than regular civilians but the failed to
show that they were carrying arms openly as the weapons were
hidden until they were fired against Israeli soldiers so carrying
arms openly is also important for combatants.240
238
Art. 44(4) of AP 1
239
Konovo v Lativia case
240
MERCENARIES:
Mercenaries are defines under art 47 of AP 1 as persons who is

specially recruited locally or abroad to fight in an armed conflict
although they do participate directly in hostilities but their
motivation to participate in a hostilities is based on the desire for
private gain such as payment of compensation or money for their
services in an armed conflict by the party who recruited them.
Mercenaries are neither national nor resident on territory of state
party to an armed conflict and is not the member of armed forces,
they may be sent by a state not party to an armed conflict. Such
persons are not considered as combatant under IHL and are not
entitled to the status of P.O.Ws after falling into the hands of
adverse party.241 But whether they are entitled to the protection
and rights of P.O.Ws is to some extent dependent on the inter-
state legislation such as in the US Air Force Commander’s
Handbook asserts that the United States has regarded
mercenaries as combatants entitled to prisoner-of-war status
upon capture. This shows that a State is free to grant such status.
The Handbook also states, however, that “the US government
has always vigorously protested against any attempt by other
nations to punish American citizens as mercenaries”.242
241
Art. 47 of AP 1
242
U.S, Air Force Commander’s Handbook
Boeremag case:
In this case the court declared that spies and mercenaries do not
have the status of a combatant, and therefore are not entitled to
the status of P.O.Ws when captured. This rule only applies when
they are being detained as spies and mercenaries. The accused is
fairly charged on the counts of terrorism and also has been
indicated on three counts of murder as he does not have right to
possess the status of P.O.Ws.243
SPIES:
A person who is part of armed forces and falls under the hands
of adverse party while conducting espionage shall not be given
the status and protection of P.O.Ws244. The definition includes
combatants who wear civilian attire or who wear the uniform of
the adversary but excludes combatants who are gathering
information while wearing their own uniform. This definition is
now codified in Additional Protocol I. It is set forth in numerous
military manuals245. If such person is conducting espionage in
243
Boeremag case, South Africa
244
Art. 46(1) of AP 1
245
(ibid., §§ 150–151), Belgium (ibid., § 152), Cameroon (ibid., § 153),
Canada (ibid., § 154), Ecuador (ibid., § 155), France (ibid., § 156),
Germany (ibid., § 157), Kenya (ibid., § 158), Netherlands (ibid., §
159), New Zealand (ibid., § 160), Nigeria (ibid., § 161), South Africa
(ibid., § 162), Spain (ibid., § 163), Switzerland (ibid., § 164), United
Kingdom (ibid., § 165), United States (ibid., § 166) and Yugoslavia
(ibid., § 167)
the territory of adverse party and at the time he is caught, he is

wearing uniform of the armed force to which he belongs, in such
case he would be entitled to the status of P.O.W because he did
not failed to distinguish himself as combatant246. Member of
armed force who is resident to the territory occupied by adverse
party is collecting information valuable to the military purpose
is not to be considered as spy because he is in the territory to
which he belongs and is doing such act in manner inconformity
with IHL. Such person will not loss status of P.O.W after their
capture unless at that time he is caught engaging in espionage247,
But if such person is not inhabitant of the occupied territory and
is caught while collecting information in that occupied territory
then such person will loser his status as P.O.W if he is captured
before he rejoins with armed forces to which he belongs.248 The
rule that combatants engaged in espionage have no right to
prisoner-of-war status and may be tried is a long-standing rule
of customary international law already recognized in the Lieber
Code, the Brussels Declaration and Hague Regulations.249 It is
also set forth in Additional Protocol I. Numerous military
manuals specify that combatants engaged in espionage have no
right to prisoner-of-war status and that they may be regarded as
spies. No official contrary practice was found250.
246
Art. 46(2) of AP 1
247
Art. 46(3) of AP 1
248
Art. 46(4) of AP 1
249
Art. 88 of Lieber Code, Art 20-21 of Brussels Declaration and Art
30-31 of Hague Regulations
250
(ibid., § 187), Belgium (ibid., § 188), Cameroon (ibid., §§ 189–190),
Canada (ibid., § 191), Croatia (ibid., §§ 192–193), Ecuador (ibid., §
194), France (ibid., §§ 195–196), Germany (ibid., § 197), Hungary
Ex Parte Quirin et al. case:
The court in its advisory opinion stated that the spy who secretly
and without uniform passes the military lines of a belligerent in
time of war, seeking to gather military information and
communicate it to the enemy, or for purpose of waging war by
destruction of life and property are belligerents who are
generally deemed not to be entitled to the status and protection
granted to the P.O.Ws and are subject to trail and punishment by
military tribunals.251
Osman v Prosecutor:
In this case the court held that if a regular combatant fails to

comply with the conditions provided by IHL, he may in certain
cases become unprivileged belligerent. This means that he will
of be entitled to the status of P.O.W upon his capture. Thus the
regular members of armed forces who are caught as spies are not
entitled to be treated as P.O.Ws.252
(ibid., § 198), Israel (ibid., § 199), Italy (ibid., § 200), Kenya (ibid., §
Zealand (ibid., § 204), Nigeria (ibid., §§ 205–206), South Africa (ibid.,
§ 207), Spain (ibid., § 208), Sweden (ibid., § 209), Switzerland (ibid., §
210), United Kingdom (ibid., §§ 211–212), United States (ibid., § 213)
and Yugoslavia (ibid., § 214)
251
Ex Parte Qurin et al. case
252
Osman v prosecutor, Malaysia
• COMBATANTS IN NON-INTERNATIONAL
ARMED COMFLICT:
DIFFERENCE BETWEEN CONSIDERING

COMBATANT AND GIVING THE STATUS OF A
COMBATANT:
Concept of combatants is different in non-international armed

conflict this term is used in general sense in a non-international
armed conflict. The term “combatant” if used in its generic
meaning, indicating persons who do not enjoy the protection
against attack accorded to civilians, but does not imply a right to
combatant status or prisoner-of-war status. Although it
completely depends upon the inter-state legislation that whether
they are to be called combatants or not or they are to be called
something else. State practice establishes this rule as a norm of
customary international law in international armed conflicts. For
purposes of the principle of distinction (see Rule 1), members of
State armed forces may be considered combatants in both
international and non-international armed conflicts. There is a
difference in calling a person combatant and giving him the
status of a combatant. Considering a person combatant will not
give him the status of P.O.W unless that person is given the
status of combatant. Combatant status, on the other hand, exists
only in international armed conflicts. The Ottawa Convention
banning anti-personnel landmines states that the Convention is
based, inter alia, on “the principle that a distinction must be made
between civilians and combatants in both international and non-
international conflicts”.253 Military manuals which are
253
Ottawa convention preamble
applicable in or have been applied in non-international armed

conflicts specify that a distinction must be made between
combatants and civilians to the effect that only the former may
be targeted.254 To direct attacks against civilians in any armed
conflict is an offence under the legislation of numerous States.255
There are also a number of official statements pertaining to non-
international armed conflicts invoking the principle of
distinction and condemning attacks directed against civilians.256
254
See, e.g., the military manuals of Argentina (ibid., § 173), Benin
(ibid., § 177), Cameroon (ibid., § 178), Canada (ibid., § 179),
Colombia (ibid., §§ 181–182), Germany (ibid., § 189), Netherlands
(ibid., § 201), New Zealand (ibid., § 203), Philippines (ibid., § 205),
Togo (ibid., § 211) and Yugoslavia (ibid., 216)
255
See, e.g., the legislation of Armenia (ibid., § 218), Australia (ibid.,
§ 220), Azerbaijan (ibid., §§ 221–222), Belarus (ibid., § 223), Belgium
(ibid., § 224), Bosnia and Herzegovina (ibid., § 225), Canada (ibid., §
228), Colombia (ibid., § 230), Democratic Republic of the Congo
(ibid., § 231), Congo (ibid., § 232), Croatia (ibid., § 234), Estonia
(ibid., § 239), Georgia (ibid., § 240), Germany (ibid., § 241), Ireland
(ibid., § 244), Lithuania (ibid., § 248), Netherlands (ibid., § 250), New
Zealand (ibid., § 252), Niger (ibid., § 254), Norway (ibid., § 255),
Slovenia (ibid., § 257), Spain (ibid., § 259), Sweden (ibid., § 260),
Tajikistan (ibid., § 261), United Kingdom (ibid., § 265), Vietnam (ibid.,
§ 266), Yemen (ibid., § 267) and Yugoslavia (ibid., § 268); see also the
legislation of the Czech Republic (ibid., § 237), Hungary (ibid., § 242),
Italy (ibid., § 245) and Slovakia (ibid., § 256), the application of which
is not excluded in time of non-international armed conflict, and the
draft legislation of Argentina (ibid., § 217), Burundi (ibid., § 226), El
Salvador (ibid., § 238), Jordan (ibid., § 246), Nicaragua (ibid., § 253)
and Trinidad and Tobago (ibid., § 262)
256
See, e.g., the statements of Belgium (ibid., § 274), France (ibid.,
§§ 286 and 288–289), Germany (ibid., §§ 294–295), Malaysia (ibid., §
306), Netherlands (ibid., § 308), Philippines (ibid., § 47), Slovenia
(ibid., § 314) and Uganda (ibid., § 317)
So in non-international armed conflicts the term combatant may

be given merely for the purpose of distinguishing those who are
taking direct part in hostilities against the government of a state.
ICJ, ICTY and Inter-American Commission on Human

Rights about the concept of combatant in non-international
armed conflict in their cases:
The jurisprudence of the International Court of Justice in the
Nuclear Weapons case, of the International Criminal Tribunal
for the Former Yugoslavia, in particular in the Tadic case, Marti
case and Kupreski case , and of the Inter-American Commission
on Human Rights in the case relative to the events at La Tablada
in Argentina provides further evidence that the obligation to
make a distinction between civilians and combatants is
customary in both international and non-international armed
conflicts because the courts in all these cases established that for
the purpose to distinction the combatants must distinguish
themselves from the civilians in both international and non-
international armed conflicts.257 All of these cases are prove that
the concept of combatants do exist in non-international armed
conflict as well.
The ICRC has called on parties to both international and non-

international armed conflicts to respect the distinction between
257
5 ICJ, Nuclear Weapons case, Advisory Opinion (ibid., §§ 61 and
434); ICTY, Tadic case ´ , Interlocutory Appeal (ibid., § 435), Martic
case ´ , Review of the Indictment (ibid., §§ 437 and 552) and Kupreski
ˇ c case ´ , Judgement (ibid., §§ 441 and 883); Inter-American
Commission on Human Rights, Case 11.137 (Argentina) (ibid., §§ 64,
443 and 810)
combatants and civilians.258 Common Article 3 of the Geneva

Conventions and Additional Protocol II refer to “armed forces”
and Additional Protocol II also to “dissident armed forces and
other organized armed groups”. These concepts are not further
defined in the practice pertaining to non-international armed
conflicts. While State armed forces may be considered
combatants for purposes of the principle of distinction259,
practice is not clear as to the situation of members of armed
opposition groups. Practice does indicate, however, that persons
do not enjoy the protection against attack accorded to civilians
when they take a direct part in hostilities260. Persons taking a
direct part in hostilities in non-international armed conflicts are
sometimes termed as “combatants”. For example, in a resolution
on respect for human rights in armed conflict adopted in 1970,
the UN General Assembly speaks of “combatants in all armed
conflicts”.261 More recently, the term “combatant” was used in
the Cairo Declaration and Cairo Plan of Action for both types of
conflicts262. However, this designation is only used in its generic
meaning and indicates that these persons do not enjoy the
protection against attack accorded to civilians, but does not
imply a right to combatant status or prisoner-of-war status, as
applicable in international armed conflicts. The lawfulness of
258
See, e.g., the practice of the ICRC (ibid., §§ 67–75)
259
260
261
4 UN General Assembly, Res. 2676 (XXV), 9 December 1970,
preamble and § 5
262
Cairo Declaration, Sections 68–69, and Cairo Plan of Action,
Section 82, both adopted at the Africa-Europe Summit held under
the Aegis of the Organization of African Unity and the European
Union, 3–4 April 2000
direct participation in hostilities in non-international armed

conflicts is governed by national law. While such persons could
also be called “fighters”, this term would be translated as
“combatant” in a number of languages and is therefore not
wholly satisfactory either. Treaty provisions use different
designations that can apply to “fighters” in the context of non-
international armed conflicts, including: persons taking active
part in the hostilities263, members of dissident armed forces or
other organized armed groups264, persons who take a direct part
in hostilities265, civilians who take a direct part in hostilities266,
civilians taking direct part in hostilities267, and combatant
adversary.268 But again it totally depends upon the national law
of state that what they be called.
Torture in Israel v Government of Israel case:
In this case the military court of Israel declared that persons who
are member of forces and are carrying out hostilities against the
state of Israel are to be considered as “unlawful combatants” and
on their capture are not to be granted the status of P.O.Ws under
IHL.269
In Israel such persons are referred as unlawful combatants
263
Art. 3 of common GC
264
Art. 1 of AP 2
265
Art. 4 of AP2
266
Art. 13(3) of AP 2
267
Art. 8(2)(e)(i) of ICC statute
268
Art. 8(2)(e)(ix) of ICC Statute
269
Torture in Israel v government of Israel Case
Hamdi case 2004:
In this case, the court of U.S laid down the individuals who part
of forces hostile to the U.S or coalition partners and engages or
supports the terrorist organizations in non-international armed
conflict against U.S, such persons are termed as “enemy
combatants” and U.S government can detain and prosecute such
person.270
Re Guantanamo Detainees case 2005:
In this case the court broadened the ambit of the term “enemy
combatant” and held that any person supporting Taliban or al
Qaeda forces or any other forces that are engaging in hostilities
against the U.S government. This includes any belligerent act or
support in terms of aid to the enemy forces.271 Similarly, was
declared in the Boumediene case 2008.272
Thus, under U.S laws these persons are called enemy combatants
but are not given the legal status of combatants and are
considered as criminals.
Fuel Tanker Case 2010:
In this case the German federal court declared that the persons
who are participating in hostilities against the government of
270
Hamdi case 2004
271
Re Guantanamo Detainees case 2005
272
Boumediene case 2008
Germany and ISAF are to be considered as “enemy fighters” laid

down the criteria of identifying such persons in case of doubt.
And held that the government troops can prosecute such persons
who fulfill the criteria of being an enemy fighter, the court
concluded that such persons are not to be considered as
combatants and are not to be given the status of P.O.Ws273
So, under the German law there is no concept of combatants and
instead they use the word enemy fighter for the non-international
armed conflict.
Neither article 3 common to the Geneva Conventions nor AP 2

use the term “combatant”. There is a reference to the “members
of armed forces”, but only in a specific connection, namely that
of being hors de combat. It protects “persons taking no active
part in the hostilities” and gives a non-exhaustive list of
examples of such persons. They include “members of armed
forces having laid down their arms”. In addition, the wounded
and sick enjoy a special protection. In this sense, the ICRC Draft
of AP 2 indeed used the term “combatant”, bringing the
regulation closer to that applying in international conflicts in
Article 24 (1)274. In the text of this draft of AP 2 which was
submitted to the final plenary sessions of the Diplomatic
Conference in 1977, these provisions remained essentially
identical. In article 24, the word “combatant” was retained, in
article 25, the words “or of an organized armed group” were
added in order to align the text with the new version of article 1
273
Fuel Tanker case 2010
274
ICRC Draft of AP 2 in relation to non-international armed conflict
adopted by the Conference275. That process of “simplifying”

Protocol II drew its inspiration from the fear voiced by a number
of developing countries (and silently shared by others) that the
application of Protocol II might undermine the ability of States
to deal with internal matters, by enhancing the status of rebels.
If the status of combatants was given to the rebels of the
government they will get the right to participate in hostilities and
status of P.O.Ws and become immune from prosecution against
their unlawful acts of rebellion. Thus, terms like “parties to the
conflict”, which seemed to signal a kind of equality between the
governmental and the non-governmental side, were to be
avoided. In this context, also the word “combatant” became
objectionable. The latter objection is probably justified, as the
use of the word combatant in the drafts of AP. II was never
meant to entail the privileged prisoner of war treatment
combatants enjoy in international armed conflict.
Later in the San Remo Manual, word fighter was codified and
obligation were imposed to follow and respect the principle of
distinction to ensure the protection of civilians in the conduct of
military operations between fighters and government. Attacks
must be directed only against fighters or military objectives.276
275
ICRC Diplomatic Conference 1977
276
Rule 115, 202 and 205 of San Remo Manual
ICRC SECOND MEETING ON THE NOTION OF

DIRECT PARTICIPATION IN HOSTILITIES IN A NON-
INTERNATIONAL ARMED CONFLICT:
In a non-international armed conflict there are two parties. On

the one hand, the High Contracting Party and its “armed forces”,
on the other hand “dissident armed forces or other organized
armed groups” which have to fulfill certain criteria. In particular,
they have to be “under a responsible command”. They have to
be able to carry out “military operations”. In other words, the
article presupposes as parties, on the one hand, the State with its
military organization (the armed forces) and, on the other hand,
an entity which also possesses a high degree of administrative
organization, including its own military organization. Fighting
is supposed to take place between these military organizations,
and only between them.277
The government side:

During the Diplomatic Conference, it was discussed whether the
same definition applied to the “armed forces” of the
governmental side under Prot. II. The issue is addressed in the
following explanatory note in the relevant report of Committee
I of the Conference:
In this Protocol, so far as the armed forces of a High Contracting
Party are concerned, the expression armed forces means all the
armed forces including those which under some national systems
might not be called regular forces constituted in accordance with
national legislation under some national systems; according to
277
ICRC second meeting on the notion of direct participation in
hostilities in non-international armed conflict
the views stated by a number of delegations, the expression

would not include other governmental agencies the members of
which may be armed; examples of such agencies are the police
customs and other similar organizations278.
The non-governmental side:

Where the non-governmental side also employs a military
organization rightly styled “armed forces”, similar
considerations apply. As to the notion of “organized armed
groups”, the ICRC delivered the following statement during the
negotiations of Working Group B of Committee I:
The expression does not mean any armed band acting under a
leader. Such armed groups must be structured and possess
organs, and must therefore have a system for allocating authority
and responsibility; they must also be subject to rules of internal
discipline. Consequently, the expression “organized armed
groups” does not imply any appreciable difference in degree of
organization from that of regular armed forces.279
It is this necessity of an organization which gives some

permanence to the status of a “fighter” under the law relating to
non-international armed conflict. It is the membership in that
organization which is the necessary for a person to be considered
as “fighter”. This principle also underlies the Tadi• Judgment of
the ICTY.
Tadi Case of ICTY:
278
Committee I of the Diplomatic conference
279
Working group B of the Committee I of the Diplomatic Conference
An individual who cannot be considered a traditional ‘non-

combatant’ because he is actively involved in the conduct of
hostilities by membership in some kind of resistance group in
terms of non-international armed conflict is to be considered as
fighter 280
As explained above, the necessary prerequisite for a person to be

considered as a fighter is that he or she belongs to an
organization which constitutes the “armed forces” or another
“organized armed group”. A person acquires the membership
with this organization by some kind of constitutive act on the
part of the organization. It takes both the will of the person and
that of the organization to establish a membership. That status
can then be ended only by some kind of contrary act, a discharge,
dissolution of the contract or the like, but not simply by the end
of actual fighting. Where a fighter leaves the area of military
activities, goes home and puts on civilian clothes, this does not
end the membership in the organization and, consequently, does
not lead to the loss of the status of a fighter. In an international
armed conflict, this puts the civilian in a position which in a
certain respect is worse than that of a combatant. A combatant
becomes a prisoner of war who may not be punished for its
participation in the hostility an unprotected civilian does not
have that benefit. On the other hand, in a non-international
armed conflict, neither the fighter281, nor the unprotected civilian
has that benefit. Thus, the unprotected civilian finds itself in the
280
Tadi case ICTY
281
See M.H. Hoffman, Quelling Unlawful Belligerency: the Juridical
Status and Treatment of Terrorists Covered by the Laws of war Israel
Yearbook on Human Rights 161 (202), at 16
same position as the fighter. The essential difference between

fighters and unprotected civilians is, however, that the latter
regain their protected status if they cease to take a direct part in
hostilities, while fighters remain subject to individualized
attacks even if they cease fighting (unless they become a person
hors de combat). This principle has been upheld by several
judicial and quasi-judicial decisions.
Court of Inter-American Commission on Human Rights:
In relation to the non-international conflict in Colombia, the

Inter-American Commission on Human Rights holds:282It is
important to understand that while these persons forfeit their
immunity from direct attack while participating in hostilities,
they, nonetheless, retain their status as civilians. Unlike ordinary
combatants, once they cease their hostile acts, they can no longer
be attacked, although they may be tried and punished for all their
belligerent acts.
282
Third Report on the Human rights Situation in Columbia, 26
February 1999
UNIT: IV
MERCENARIES
• INTRODUCTION
The origin of the word mercenary is mercis, which is Latin for
merchandise. According to this, mercenaries are merely traders
receiving personal gain for selling their skills. However, a
narrower definition has always been tied to value judgments and
political views.283 Even in current times, mercenaries are only
mercenaries when it suits the political agenda of states.284Critics
of the PMS industry often resort to non-legal definitions of
mercenaries such as the description in the Oxford English
283
9 J.C. ZARATE, The Emergence of a New Dog of War: Private
International Security Companies, International Law, and the New
World Order, Stanford Journal of Int’l Law n° 34, 1998, 125
284
C. KINSEY, International Law and the Control of Mercenaries and
Private Military Companies, Cultures & Conflits, June 2008.
Dictionary: ‘a professional soldier hired to serve in a foreign

army’. 285 Even the former U.N. Special Rapporteur of the U.N.
Commission on Human Rights on the Effects of the Use of
Mercenaries has implied that the only difference between
mercenaries and contractors is the fact that only the latter are
being hired by States.286
• MERCENARIES IN CUSTOMARY
INTERNATIONAL LAW
As mentioned in the historical overview, the use of mercenaries
in warfare can be dated back to ancient civilizations. However,
provisions explicitly prohibiting mercenarism only emerged in
the post-World War II era. Prior to it, no mention of these actors
could be found in The Hague Conventions, nor in the Geneva
Conventions of 1949 or in customary international humanitarian
law.287 These actors were thus considered a legitimate means of
warfare for a very large period. However, certain provisions of
Hague Convention V (dealing with principles of non-
interference and nonaggression) have to be taken into account.
In this convention, several articles might imply mercenary
activities:
285
Oxford Dictionary, available at:
http://www.oxforddictionaries.com/definition/english/mercenary
286
UN Commission on Human Rights, report on the question of the
use of mercenaries as a means of violating human rights and
impeding the exercise of the right of peoples to self-determination,
53rd session, Item 7, E/CN.4/1997/24, Special Rapporteur, February
20, 1997, 27.
287
B.O. GOLDSTEIN, Mercenaries, N.Y., International Criminal Law,
1999, 439-57
- Art 4. Corps of combatants cannot be formed nor recruiting

agencies opened on the territory of a neutral Power to assist the
belligerents.
- Art 5. A neutral Power must not allow any of the acts referred
to in Articles 2 to 4 to occur on its territory.
- Art 6. The responsibility of a neutral Power is not engaged by

the fact of persons crossing the frontier separately to offer their
services to one of the belligerents.
- Art 17 A neutral cannot avail himself of his neutrality
(a) If he commits hostile acts against a belligerent.
(b) If he commits acts in favour of a belligerent, particularly if

he voluntarily enlists in the ranks of the armed force of one of
the parties.
In such a case, the neutral shall not be more severely treated by

the belligerent as against whom he has abandoned his neutrality
than a national of the other belligerent State could be for the
same act.288
Although there is no explicit mention of mercenaries in these

articles, it has been argued that these rules can apply to
mercenary activities in specific cases.289 On the one hand,
reading art 4 in conjunction with art 6 leads to the conclusion
288
Convention (V) respecting the Rights and Duties of Neutral
Powers and Persons in Case of War on Land, The Hague, 18 October
1907.
289
L. GAULTIER, G. HOVSEPIAN, supra note 1, 26; K. GOVERN, E.
BALES, Taking Shots at Private Military Firms: International Law
Misses its Mark (Again), Fordham Int’l Law Journal 55, 2008, 68.
that neutral states have no obligation to prevent individuals from

passing through its territory to join the conflict. There is only an
obligation for neutral states regarding the formation and
recruitment of private fighters in its territory. On the other hand,
none of the provisions restrict the possibility for nationals of
member states to work for hostile states. This lack of control on
the activities of individuals in the military field must be seen in
the worldview of that period in which governments and
individuals were considered mutually exclusive areas.290 more
and more states and institutions started condemning mercenaries
since the creation of the United Nations in 1948 and the
following decolonization attempts in the 1950s and 1960s. The
recognition of the right to selfdetermination (embedded in art 1
of the UN Charter and reaffirmed in several other UN
Declarations) in an era of states struggling to become
independent caused a change in the attitude of the international
community towards mercenaries.291The UN General Assembly
for example stated in their 1970 Declaration on Principles of
International Law that states
290
J. ABRISKETA, Blackwater: mercenaries and international law,
University of Deusto, October 2007, 3
291
Charter of the United Nation of 26 June 1945; United Nations,
General Assembly resolution 1514 (XV), of 14 December 1960; the
International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights, both
of 16 December 1966
“(…) have the duty to refrain from organizing or encouraging

the organization of irregular forces or armed bands, including
mercenaries, for incursion into the territory of another State.” 292
• CONVENTIONAL TREATMENT OF
MERCENARIES
It was with considerable reluctance that states at the Diplomatic
Conference on the Reaffirmation and Development of
International Humanitarian Law Applicable in Armed
Conflicts293 acquiesced in the demands of Organization of
African Unity (OAU)294 and socialist nations to insert a
provision dealing specifically with mercenary activity.295 The
constant tug-of-war between states seeking an inclusive system
of international humanitarian law and states seeking a formal,
exclusionary categorization of corporate actors in armed conflict
has undoubtedly undermined the force of the mercenary-specific
conventional law. This is so in terms of the limited number of
292
General Assembly, Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in
accordance with the Charter of the United Nations, A/RES/25/2625,
24 October 1970
293
Geneva, 1974–7 (hereinafter Diplomatic Conference of 1977)
294
Now the African Union
295
Many states were at pains to express their difficulty with the
provision, although Article 47 of Protocol I to the 1949 Geneva
Conventions was ultimately adopted by consensus (CDDH/SR.41, 26
May 1977). Official Records of the Diplomatic Conference on the
Reaffirmation and Development of International Humanitarian Law
applicable in Armed Conflicts (CDDH), Federal Political Department,
Berne, 1978, Vol. VI, p. 488.
states willing to ratify the mercenary-specific conventions,296

and in terms of the wording of mercenary-specific articles in
general international humanitarian law instruments.
I.INTERNATIONAL HUMANITARIAN LAW

INSTRUMENTS
The overarching concern of the international humanitarian law
instruments is to provide protection, including legal protection,
in times of armed conflict, and it is rare for the conventions to
sideline particular categories of actor. International
humanitarian law’s approach to mercenaries is controversial in
this respect. The mercenary provisions have a primarily
symbolic significance, to the extent that mercenaries are the
subject of particular attention and are accorded fewer protections
than combatants. However, there are difficulties with the
conventional definitions of ‘‘mercenary’’, and international
humanitarian law instruments do little to clarify the legal
consequences of mercenary status. A brief outline of the
conventional treatment of mercenaries under international
humanitarian law is given below.
296
Of 192 UN Member States only 16 have signed and 28 have
become party to the UN Convention: Status of Multilateral Treaties
Deposited with the Secretary-General, UN Treaty Series (October
2006). Only eight of the parties to the UN Convention are African
Union member states. Of 53 African Union member nations, only 31
signed and 27 ratified or acceded to the OAU Convention. See ‘‘List
of Countries which have signed, ratified/acceded to the Convention
for the Elimination of Mercenarism in Africa’’, available at
,http://www.africa-union.org. (visited 19 Oct. 2006).
THE HAGUE CONVENTIONS OF 1907
While the Hague Conventions do not expressly refer to

mercenaries, Hague Convention V deals with the implications of
mercenary activity in terms of neutrality.297 Article 4 provides
that corps of combatants are not to be formed, nor are recruiting
agencies to be opened, on the territory of a neutral state to assist
belligerents in an armed conflict. Article 5 places a direct
responsibility on the neutral state to ensure that the acts to which
Article 4 refers do not take place on its territory. The effect of
Article 17 is that an individual who acts in favour of a belligerent
by taking up arms as a mercenary or private military contractor
‘‘cannot avail himself of his neutrality’’. Nonetheless, the same
article provides that such an individual is still entitled to the level
of protection afforded to nationals of belligerent states.
II. THE GENEVA CONVENTIONS OF 1949 AND THE

1977 ADDITIONAL PROTOCOLS
Mercenaries receive no mention in any of the four Geneva

Conventions of 1949.298 The first mainstream international
297
Hague Convention (V) respecting the Rights and Duties of Neutral
Powers and Persons in Case of War on Land, of 18 October 1907
(Hague Convention V)
298
Geneva Convention (I) for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field, of 12 August
1949; Geneva Convention (II) for the Amelioration of the Condition
of Wounded, Sick and Shipwrecked Members of Armed Forces at
humanitarian law instrument to deal specifically with

mercenaries was the 1977 Additional Protocol I thereto.299 It
applies exclusively to international armed conflicts and fewer
states are party to it than to the Geneva Conventions of 1949.
Nevertheless, the ICRC considers Article 47 of Additional
Protocol I as reflecting customary international humanitarian
law.300
This mercenary provision was first proposed in 1976 by the

Nigerian delegation to the Diplomatic Conference, albeit in
slightly different terms.301In 1977, following significant debate
Sea, of 12 August 1949; Geneva Convention (III) relative to the

Treatment of Prisoners of War, of 12 August 1949; Geneva
Convention (IV) relative to the Protection of Civilian Persons in Time
of War, of 12 August 1949.
299
Protocol additional to the Geneva Conventions of 12 August 1949,
and relating to the Protection of Victims of International Armed
Conflicts of 8 June 1977 (Protocol I).
300
See Jean-Marie Henckaerts and Louise Doswald-Beck, Customary
International Humanitarian Law: Vol. 1: Rules, ICRC and Cambridge
University Press, Geneva, 2005, pp. 391–5. Rule 108 reads:
‘‘Mercenaries, as defined in Additional Protocol I, do not have the
right to combatant or prisoner-ofwar status. They may not be
convicted or sentenced without previous trial.’’
301
The Nigerian delegation proposed an article in the following
terms (CDDH/236/Rev.1) (note 16): 1. The status of combatant or
prisoner of war shall not be accorded to any mercenary who takes
part in armed conflicts referred to in the Conventions and the
present Protocol. 2. A mercenary includes any person not a member
of the armed forces of a party to the conflict who is specially
recruited abroad and who is motivated to fight or to take part in
armed conflict essentially for monetary payment, reward or other
private gain.
and consideration of the issue by a working group,302 the article

was adopted by consensus. Many delegations stated that they
supported the inclusion of the provision, ‘‘in the spirit of
compromise’’.303 Indeed, the working group dealing with the
mercenary provision reported that ‘‘It should not be thought that
all delegates were fully satisfied with the final text.’’304 Article
47.1 of Additional Protocol I provides that individuals who are
(a) found to be mercenaries are to be deprived of the

rights of combatant or prisoner-of-war status.
Article 47.2 defines a mercenary as any person
who: is specially recruited locally or abroad in
order to fight in an armed conflict;
(b) does, in fact, take a direct part in the hostilities;
(c) is motivated to take part in the hostilities

essentially by the desire for private gain and, in
fact, is promised by or on behalf of a Party to the
conflict material compensation substantially in
excess of that promised or paid to combatants of
similar rank and functions in the armed forces
of that Party;
302
See ‘‘Report to Committee III on the work of the Working Group
submitted by the Rapporteur’’, Geneva, 17 March–10 June 1977,
CDDH/III/369.
303
See note 35 below. The Australian delegation went so far as to
comment that, if the provision had been put to a vote, it would not
have been able to vote in favour: Australia (CDDH/III/SR.58 at 205).
304
‘‘Report to Committee III on the work of the Working Group
submitted by the Rapporteur’’, CDDH/ III/369 and Corr.1., Geneva,
17 March–10 June 1977
(d) is neither a national of a Party to the conflict nor a

resident of territory controlled by a Party to the
conflict;
(e) is not a member of the armed forces of a Party to

the conflict; and
(f) has not been sent by a State which is not a Party

to the conflict on official duty as a member of its
armed forces.305
Legal commentators expressly acknowledge that Article 47 of

Additional Protocol I was inserted to appease African nations
and was intentionally narrow in its scope of application.306 For
an individual to be classified as a mercenary under Article 47.2,
he or she must meet all six requirements, (a) to (f). It is virtually
impossible to find an individual who falls within the Article 47.2
definition of a mercenary.307
One of the most contentious requirements of Article 47.2 is

contained in subparagraph (c) and relates to motivation. For
305
Emphasis added
306
See, e.g., Frits Kalshoven and Liesbeth Zegveld, Constraints on the
Waging of War: An Introduction to International Humanitarian Law,
3rd edn, ICRC, Geneva, 2003, p. 90
307
This point is widely acknowledged. For example, the US position is
that ‘‘[t]he definition of ‘mercenary’ in [Protocol I] is so narrow that
few persons would fit within it’’: US, Air Force Commanders’
Notebook, 1980, 15-3, as cited in Henckaerts and Doswald-Beck,
above note 21, Vol. 2, ch. 33, pp. 2576–7. See also Peter W. Singer,
‘‘War, profits and the vacuum of law: Privatized military firms and
international law’’, Columbia Journal of Transnational Law, Vol. 42
(2004), p. 521, at p. 524.
some, it is essential that the definition distinguishes mercenaries

from other actors on the basis of their motivation. As one
commentator has suggested, ‘‘it is impossible satisfactorily to
define a mercenary without reference to his
motivation’’. Some state delegations to the Diplomatic
308
Conference of 1977 were of the same mind.309
The second limb of subparagraph (c), that the mercenary must

‘‘in fact, [be] promised by or on behalf of a Party to the conflict
material compensation substantially in excess of that promised
or paid to combatants of similar rank and functions in the armed
forces of that Party’’, is an attempt at mitigating the subjectivity
of the motive requirement, balancing it with an objective test that
can be more easily adjudicated by an outsider. Nevertheless, the
wording of subparagraph (c) is such that the excessive material
compensation requirement is in addition to the motive
requirement, as is apparent from the use of the word ‘‘and’’ to
join the two limbs. This leaves unresolved the difficulties with
interpreting an individual’s motivation for participation in
hostilities. Indeed, as the United Kingdom’s Diplock Committee
stated in its 1976 report on the recruitment of mercenaries:
any definition of mercenaries which required positive proof of

motivation would … either be unworkable or so haphazard in its
application as between comparable individuals as to be
unacceptable. Mercenaries, we think, can only be defined by
308
Riley Martin, ‘‘Mercenaries and the rule of law’’, Review of the
International Commission of Jurists, Vol. 17 (1977), p. 51, at p. 53.
309
See, e.g., Syrian Arab Republic, CDDH/III/SR.57, p. 196; Cameroon
and Mali, CDDH/III/SR.57, p. 201. Volume 88 Number 863 September
2006
reference to what they do, and not by reference to why they do

it.310
This concern about the difficulty in judicially assessing an

individual’s motivation stands in addition to more general
concerns as to the desirability of attaching motive to legal status
in armed conflict.
The shortcomings of Article 47 are clearest when we read it in

the light of the rest of the Protocol. Although the article goes
some way to providing a definition of mercenary activity, it is of
little significance when we consider the consequences of
mercenary status under Protocol I. The only consequence
flowing from Article 47 is that mercenaries are not entitled to
combatant or prisoner-ofwar status. In other words, Article 47
is presented as an exception to the rules regarding who can be a
combatant. However, as Keith notes, the provision is
‘‘concerned to isolate a category within a wider group’’ who, as
a matter of law, are not combatants.311 Article 43.2 of Additional
Protocol I defines a combatant as a member of the armed forces
of a party to the conflict (with the exception of medical and
religious personnel).312 Yet Article 47.2(e) requires that a
mercenary ‘‘is not a member of the armed forces of a Party to
310
Diplock Committee, Report of the Committee of Privy Counsellors
Appointed to Inquire into the Recruitment of Mercenaries (UK
Cmnd. 6569, 1976), at [7].
311
Kenneth J. Keith, ‘‘The present state of international humanitarian
law’’, Australian Yearbook of International Law, Vol. 9 (1985), pp.
13–35, at p. 23. See also Frits Kalshoven and Liesbeth Zegveld,
Constraints on the Waging of War: An Introduction to International
Humanitarian Law, 3rd edn, ICRC, Geneva, 2003, p. 90.
312
Cf. Third Geneva Convention, Art. 4.1
the conflict’’. This means that any individual who satisfies the
definition of a mercenary is not entitled to combatant status in
the first place. Article 47 cannot be considered a true exception
to the rules regarding combatant and prisoner-of-war status
because, when read together with Article 43, it is effectively
rendered meaningless.
When considering the consequences of mercenary status, it is

important to note that even those individuals who are classified
as mercenaries for the purposes of Additional Protocol I are
afforded certain protections under international humanitarian
law. Despite being deprived of combatant and prisoner-of-war
status, mercenaries are to be treated as non-combatants who
have taken part in hostilities. Such individuals are entitled to the
protection of the ‘‘fundamental guarantees’’ contained in
Article 75 of the same Protocol.313 The Article 75 fundamental
guarantees are broad in scope and include the right to be treated
humanely in all circumstances and the right to be protected
against murder, torture, corporal punishment and outrages upon
person dignity. Article 75.4 guarantees the right to a fair trial and
due process in respect of penal offenses. Delegations to the
Diplomatic Conference of 1977 were firm in their insistence that
mercenaries were to be protected by these fundamental
guarantees. Indeed, a number of states explicitly indicated that
they would read the article as affording mercenaries the right to
be protected by Article 75.314 Such a position was consistent with
313
Additional Protocol I, Art. 45.3
314
See, e.g., the explanations of the representatives for: Italy
(CDDH/III/SR.57, p. 193); Australia (CDDH/ III/SR.57, p. 195); Portugal
(CDDH/III/SR.57 at 198); United States (CDDH/III/SR.57, p. 199);
the overall aims of the Diplomatic Conference of 1977.

Accordingly, the popularly held view that mercenaries receive
no protection under international humanitarian law is
misguided.
• MERCENARY-SPECIFIC INSTRUMENTS
The primary focus of mercenary-specific conventions has been

to criminalize mercenary activity. Many of the definitional
difficulties with Article 47 of Additional Protocol I also apply to
the mercenary-specific conventions. In terms of the
consequences of mercenary status, the conventions depart in a
number of respects from the legal position adopted in that article.
I. THE DRAFT LUANDA CONVENTION
In 1976 the International Commission of Inquiry on Mercenaries

produced a Draft Convention on the Prevention and Suppression
of Mercenarism in Luanda, Angola (Draft Luanda
Convention).315 The preamble to that convention refers to the
drafting states’ concern at ‘‘the use of mercenaries in armed
conflicts with the aim of opposing by armed force the process of
national liberation from colonial and neo-colonial domination’’.
Article 1 defines the ‘‘crime of mercenarism’’ as liable to be
Ireland (CDDH/III/SR.57 at 199); Canada (CDDH/III/SR.57, p. 201);

and Sweden (CDDH/III/SR.57, p. 202).
315
Draft Convention on the Prevention and Suppression of
Mercenarism (produced by the International Commission of Inquiry
on Mercenaries in June 1976)
committed by individuals, groups or associations,

representatives of states and states themselves. The elements of
the crime are roughly drafted. The relevant legal person is guilty
of the crime of mercenarism if he or she, ‘‘with the aim of
opposing by armed violence a process of self-determination’’,
commits any of the following acts:
(a) organises, finances, supplies, equips, trains,

promotes, supports or employs in any way
military forces consisting of or including persons
who are not nationals of the country where they
are going to act, for personal gain, through the
payment of a salary or any other kind of material
recompense;
(b) enlists, enrols or tries to enrol in the said force;
(c) allows the activities mentioned in paragraph (a) to

be carried out in any territory under its jurisdiction
or in any place under its control or affords
facilities for transit, transport or other operations
of the abovementioned forces.
(d) The Luanda definition of the ‘‘crime of

mercenarism’’ is considerably remote from
Protocol I’s definition of a mercenary, but it
formed the basis for debate and discussion at the
Diplomatic Conference of 1977.316 Importantly,
316
Jean de Preux, ‘‘Article 47: Mercenaries’’, in Yves Sandoz et
al.(eds.), Commentary to Protocol Additional to the Geneva
Conventions of 12 August 1949, and relating to the Protection of
the Draft Luanda Convention was the first product

of efforts to deal with mercenaries at a regional
level.
III. THE ORGANIZATION OF AFRICAN UNITY

CONVENTION
In Libreville in 1977 the OAU adopted the Convention for the
Elimination of Mercenarism in Africa (OAU Convention).317
The OAU Convention is more structured in its approach than the
Draft Luanda Convention. Article 1.1 of the OAU Convention
mirrors the Protocol I definition of a mercenary in all respects
but for that part of the definition that deals with motivation.
Whereas Protocol I includes in its criteria the requirement that a
person be ‘‘motivated to take part in the hostilities essentially by
the desire for private gain’’ and, in fact, be ‘‘promised, by or on
behalf of a Party to the conflict, material compensation
substantially in excess of that promised or paid to combatants of
similar ranks and functions in the armed forces of that Party’’,
the OAU Convention, in Article 1.1(c), simply requires that a
party to a conflict (or its representative) promises the person
‘‘material compensation’’.
The most significant difference between the OAU Convention

and Protocol I, however, is the aspect of criminalization. The
OAU Convention’s provisions dealing with criminality are
broad and loosely drafted. Under the OAU Convention it is a
Victims of International Armed Conflicts (Protocol I), 8 June 1977,

ICRC, Geneva, 1977, p. 572.
317
Adopted in Libreville, Gabon, on 3 July 1977 and entered into
force on 22 April 1985. OAU Doc CM/ 817 (XXIX) Annex 11 Rev.
criminal offence to be a mercenary, and mercenaries are also

criminally responsible for any specific criminal acts they commit
in course of duty. Pursuant to Article 1.2, the crime of
mercenarism is also the subject of unusually extended forms of
participation.318 Article 3 provides that mercenaries are not to
enjoy the status of combatants and are not entitled to prisoner-
of-war status. Article 7 requires each state party to ensure that
the crime of mercenarism is ‘‘punishable by severest penalties
under its laws, including capital punishment’’.319
IV. THE UNITED NATIONS CONVENTION

The International Convention against the Recruitment, Use,
Financing and Training of Mercenaries (UN Convention)320 was
opened for signature in 1989, but did not come into force until
318
Like the Draft Luanda Convention, the OAU Convention extends
criminal liability to ‘‘the individual, group or association,
representative of a State and the State itself who with the aim of
opposing by armed violence a process of self-determination, stability
or the territorial integrity of another State, that practises any of the
following acts: (a) Shelters, organises, finances, assists, equips,
trains, promotes, supports or in any manner employs bands of
mercenaries; (b) Enlists, enrols or tries to enrol in the said bands; (c)
Allows the activities mentioned in paragraph (a) to be carried out in
any territory under its jurisdiction or in any place under its control or
affords facilities for transit, transport or other operations of the
above mentioned forces’’.
319
0 To this extent, the OAU Convention conflicts with Article
75.2(iii) of Protocol I, which prohibits corporal punishment
320
Opened for signature 4 Dec. 1989, 29 ILM 91 (entered into force
20 Oct. 2001), annex to GA Res 34, UN GAOR, 72nd plen. mtg, 44th
sess., supp. no. 43, at 590, UN Doc A/44/43 (1989).
October 2001. Like the OAU Convention, the UN Convention is

concerned with defining the ‘‘crime of mercenarism’’, and
setting out measures for its enforcement. The UN Convention’s
definition of a mercenary is divided into two parts. The first part
is similar in its terms to Protocol I’s definition, except that it
excludes the requirement that the person ‘‘does in fact take part
in the hostilities’’.321 This alone renders the UN Convention’s
definition of mercenary status broader than that in Protocol I.
However, part two of the definition is broader still. It states:
A) A mercenary is also any person who, in any other

situation [that is, not in the context of an armed conflict]:
• is specially recruited locally or abroad for the purpose
of participating in a concerted act of violence aimed at:
• overthrowing a Government or otherwise undermining
the constitutional order of a State; or
• undermining the territorial integrity of a State;
B) is motivated to take part therein essentially by the desire
for significant private gain and is prompted by the
promise or payment of material compensation;
C) is neither a national nor a resident of the State against
which such an act is directed;
D) has not been sent by a State on official duty; and
E) is not a member of the armed forces of the State on

whose territory the act is undertaken.
321
UN Convention, Art. 1.1; cf. Protocol I, Art. 47.1(b)
As such, the UN Convention provides a much lower threshold

for assigning ‘‘mercenary’’ status to an individual. The
implications of this weakening of the definition are compounded
by the fact that the UN Convention criminalizes all mercenary
activity.
V. THE INTERNATIONAL LAW COMMISSION

DRAFT CODE
The International Law Commission’s 1991 Draft Code of

Crimes against the Peace and Security of Mankind (ILC Draft
Code)322 also made specific reference to mercenaries. Article
23.2 defined a mercenary in the same terms as the OAU
Convention, except that (like the UN Convention) it did not
include the requirement that a mercenary ‘‘does in fact take part
in the hostilities’’.323 The crime of ‘‘recruitment, use, financing
and training of mercenaries’’ was omitted from the second
reading of the ILC Draft Code in 1995.324 The ILC Draft Code
formed the basis of the initial drafting of the Rome Statute for
322
The Draft Code, which included ‘‘recruitment, use, financing and
training of mercenaries’’ in its list of international crimes, was
adopted by the ILC on first reading, at its forty-third session in 1991.
The Work of the International Law Commission, 6th edn, UN,
Geneva, 2004, Vol. 1
323
See UN Convention, Art 1.1.
324
At its 47th session, in 1995, the Commission considered the 13th
report of the Special Rapporteur. The Special Rapporteur had
omitted from his report six of the 12 crimes included on first reading,
including ‘‘recruitment, use, financing and training of mercenaries’’.
UN, above note 43
the International Criminal Court. In line with the ILC’s position,

the International Criminal Court does not hold jurisdiction over
a ‘‘crime of mercenarism’’, although the matter may be revisited
when states parties come to consider the definition of aggression,
in accordance with Articles 5, 121 and 123 of the Rome Statute.
F) MERCENARY-RELATED ACTIVITIES:
FOREIGN FIGHTERS
The Working Group decided in 2014 to address a specific type
of mercenary-related activity and to further pursue the work of
the first Special Rapporteur regarding the new modalities of
mercenary activity. In the context of the protracted conflict in
Syria, fighters from various parts of the world were reportedly
travelling to the region to fight for financial gains and for
religious or ideological motivations. This prompted the Working
Group to undertake a year-long study which focused on
analysing the linkages between foreign fighters and
mercenaries.The Working Group used as its definition for
foreign fighters “individuals who leave their country of origin or
habitual residence and become involved in violence as part of an
insurgency or non-state armed group in an armed conflict.”
Through this characterisation, the experts identified key
similarities to mercenaries, including the trait of being an
external actor intervening in a conflict. They also pointed out
similarities in the types of activities in which foreign fighters
were involved, such as armed conflicts, terrorism and organised
crime. What is more, even though a key difference between
many foreign fighters and mercenaries was the ideological
motivation of the former, the incentive of financial or material
gain was also existed for foreign fighters. Through their

research, the experts noted that the absence of an international
definition of foreign fighters had led to misconceptions such as
the focus on the fighting element which left out a sizeable
contingent of individuals who travelled to provide non-violent
support. There were also additional difficulties caused by the use
at the international level of the term “foreign terrorist fighters”
which, due to the absence of a consensual international legal
definition of terrorism, could be conflated with the concept of
foreign fighters who were not necessarily engaged in terrorist
groups or activities.325
As part of their thematic engagement on this subject, the

Working Group undertook fact finding missions to Tunisia,
Belgium, Ukraine and to the European Union institutions.326 The
country visit to Tunisia in 2015 brought to the fore striking issues
such as the underlying causes which pushed youths to become
foreign fighters. At the time of the visit, Tunisians represented
one of the largest groups among the foreign fighters active in the
Syrian Arab Republic. The experts welcomed efforts by the
Tunisian authorities to establish programmes addressing
radicalisation and the issue of returning foreign fighters. The
Working Group took this opportunity to share with the
Government information on the numerous rehabilitation and
reintegration programmes that it had compiled during its
thematic research on foreign fighters.327 The 2016 visit of the
Working Group to Ukraine provided an opportunity to analyse
325
A/70/330
326
A/HRC/33/43/Add.1, A/HRC/33/43/Add.2, A/HRC/33/43/Add.3
and A/HRC/33/43/Add.4
327
A/HRC/33/43/Add.1
foreign fighters who were engaged in the conflict in the country.

The experts concluded that the substantial presence of foreign
fighters and mercenaries in Ukraine had contributed to the
exacerbation of the conflict in the east of the country. The
Working Group was faced with a complex context in which it
was often difficult to establish clearly if individuals were foreign
fighters or mercenaries or possibly both. Following their visit,
the experts urged the authorities to ensure full accountability for
human rights violations committed by foreign fighters and
mercenaries by, inter alia facilitating legal cooperation between
Ukraine and the countries of origin of perpetrators.328 The report
of the Working Group in 2016 further demonstrated the experts’
perspective on the phenomenon of foreign fighters. The experts
noted that foreign fighters were historically motivated to join a
conflict for ideological reasons. Foreign fighters could generally
be associated with insurgencies or specific causes serving the
less powerful. Their existence was thus not new and the Working
Group enumerated five broad categories of past and present state
reaction to foreign fighters: “nineteenth-century foreign
enlistment legislation; newly created specific foreign fighter
legislation; controls relating to the removal of citizenship;
controls restricting movement or allowing for the confiscation of
passports; and other anti terror provisions.”329 The Working
Group concluded that the adoption of specific international
measures regulating foreign fighters was problematic due to the
remote possibility of achieving a consensus among States on
328
A/HRC/33/43/Add.3
329
A/71/318, §17
whether or not the presence of foreign fighters was legitimate or

illegal in all circumstances.
INTERNATIONAL DEFINITION OF A FOREIGN

TERRORIST FIGHTER
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 receiving of terrorist training, including in
connection with armed conflict.330
ALI MARDAN’S TAKE ON PRIVATE MILITARY

SECURITY COMPANIES:
PMSCs do not fall under definition of mercenaries.331 Although

it’s an uncovered grey-area.332 It must be noticed that PMSCs as
a whole is a legal person and there is an international standard
assumption that term mercenary applies only to natural
persons.333 Definition of mercenaries is provided under art 47 of
AP1 in series of cumulative elements334, it is so narrow majority
of PMSCs do not meet all criteria.335
330
S/RES/2178
331
D.A.Kaluarachchi, Privatization of AC and IHL
332
Privatization of Warfare, Violence and PMSCs, Palou-
Loverdos,Pg.22,171
333
PMSC Code-of-Conduct, Geneva center for DCAF,Ch.7.4,Pg.28
334
UN, Treaty Series,vol.1125,No.17512;article 47
335
M.Sossai, EU Working-papers, PRIV-WAR project,6-june-2009,4
Where mercenaries are not to be granted the status of

Combatants or POWs, But PMSCs will primarily acquire the
status of POW and combatants until by conduct become
mercenaries.336 PMSC operating in peace-keeping mission even
if involved in hostilities would be regarded as combatants.337
Four categories of PMSCs have been identified, (1) Support

Services, (2) Military and Security expertise, (3) Armed Security
and (4) Offensive Combat Services. 338 Large number of PMSC
(category 1 & 2) do not fall under Section (a) as mercenaries
because most of them are not hired to fight339 and will qualify as
civilians340. Only a small number PMSC staff is involved in
military functions and active in conflict (category 3& 4).341
Military instructors and advisors sent to assist forces aren’t
mercenaries under Section (b) as they personally do not DPH.342
PMSC employees in developed countries receive 3-9 or even 20

time greater payment than persons of similar rank and
functions.343 But in developing countries their wages are lower
than required quantitative threshold by section (c).344
336
Montreux Document,Pg.40
337
UN-Secretary General, supra note 43 at 1
338
Tonkin, State Control Over PMSCs in AC,11-august-2011,40
339
340
Montreux Document, p.36
341
Report in response to parliamentary-postulate on PMSC,
Switzerland,2005
342
Ukraine IHL Manual,2004
343
W.Charpentier, PMSC pay vs. army pay
344
L.Armendariz, supra note 102,60
Most of PMSC employees are nationals of party to the

conflict.345 There is possibility of them being national of party
who hired them.346 In case of PMSC used in Afghanistan, only
9% of contractors were foreigners.347
All contractors are not part of nor controlled by armed

forces of the state,348Yet PMCs take orders directly from the
armed forces and aren’t mercenaries under section (e).349
Incorporation in armed forces by UN in Sierra Leone is noble
example to this. 350 Not every foreign national acting volunteer
in armed forces of state are mercenaries, they must be considered
combatant as Gurkha units of British army and Soldiers of
French foreign Legion.351
However, unless a PMC fits within all sections of Art.47, it will

escape the coverage of the definition.352 UNGA has confirmed
that PMSC can’t be presumed mercenaries.353 UN oppose the use
of mercenaries,354 but hired PMSCs in Haiti and Liberia in their
345
346
UNGA, Report by Working-Group,A|HRC|7|7|,9-jan-2008,15
347
M.Schwartz, D.O.D’s use of PSC in Ag\Afghanistan and Iraq,Jan-
2010,9,feb-2011,3,may-2001,11
348
Tadic case,15-july-1999,Para.93-94
349
See Singer, War, Profits, and the Vacuum of Law, supra note 50,
at 532-33
350
Fighting For Diamonds, PMSC in Sierra Leone
351
Netherlands Military Manual,1993
352
U.K. GREEN-PAPER at 6,ECOSOC
353
UNGA,Resolution,61/151,19-dec-2006
354
Ibid
missions.355 Unlike mercenaries, PMSC are protected against

attacks unless they DPH,356
355
Foreign and common-wealth office, PMSC,2001-02,H.C.557 at 19
356
Montreux Document, Statement 25
UNIT: V
DIRECT PARTICIPATION IN HOSTILITIES
Ukrainian civilians carrying weapons
➢ Basic understanding by Civilians:

Term civilian refers to the persons who are immune from direct
attack unless they themselves take direct part in hostilities. 357
These persons are neither regular members of armed forces nor
they are levee en masse.358 All of persons who are not
combatants, members of armed forces, levee en masse,
mercenaries or caught in espionage are civilians. There is no
357
Art. 51(3) of AP 1 and 13 (2) of AP 2
358
Art. 50(1) of AP 1 and Rule 5 of customary IHL
need to further discuss these terms as all of these terms have

already been discussed in chapter 2 of this document.
• direct participation in hostilities:

Although this notion is mentioned in the IHL conventions, but it
is not further discussed in those conventions. In must be
interpreted in good faith in relation to the purpose of IHL. Other
act of violence which does not fall under the context of armed
conflict such as riots are not included in this notion as they do
not fulfil the required threshold for an armed conflict.359 Even in
an armed conflict not all hostile acts such as expressing anger
constitute the “direct participation in hostilities”. There are two
main parts of this notion, one is “hostilities” and the other is
“direct participation”. Term hostilities refers to the resort to
physical force (means and methods) to case physical harm to the
adverse party during an armed conflict.360 Participation means
individual’s contribution to those hostilities, it can be direct and
indirect. This notion does not refer to the status, function or
affiliation of an individual (whether he/she is a civilian or
combatant), it only refers to his/her engagement in hostile acts
against a party to the armed conflict.361 Not all hostile acts done
by civilians are to be considered as direct participation in
hostilities.362 Long term participation in hostilities may make it
difficult to distinguish between temporary and permanent
359
Art. 1(2) of AP 2
360
Art. 22 H IV R, Sec 2 on hostilities
361
Prevailing view during the expert meetings (Report DPH 2004 pp.
24, 2005 pp. 19-24, 2006 pp. 37 and 2008 pp. 33)
362
Report DPH 2006, pp.28
participation in combat functions. In order to qualify as direct

participation in hostilities an act must meet the following
requirements:
i.Act must be likely to adversely affect the military

operation or capacity of a party to an armed conflict, or
to inflict death, injury or destruction to the persons or
object protected against direct attack (threshold of
harm).
ii. There must be direct causal link between the act and
harm likely to result either from the act, or from the
coordinated military operation of which the act
constitutes an integral part (direct causation).
iii. The act must be specifically designed to cause the
required threshold of harm in support of party to the
armed conflict and to the detriment of another
(belligerent nexus).
If these three requirements has be met, an act then will be
considered as direct participation in hostilities.363 All of these
elements are closely interrelated to each other.
I. The Threshold of harm:

Form an act to qualify as direct participation in hostilities, the
harm which is likely to result from it must attain a certain
threshold.364 Such threshold can be fulfilled by causing harm to
of military nature or inflicting death, injury or destruction to a
person or object protected from direct attack. The required
363
Report DPH 2006, pp. 40f., 43 ff., 49f
364
Background doc. DPH 2004, pp. 27 f.; and 2005, WS II-III, P.6
threshold does not mean materialization of the harm but the

objective livelihood of such harm will be or expected to result
by the act. It is based on harm likely to be caused, and must be
expected to result from an act in ongoing circumstances.365
If an act is reasonably expected to cause harm to the other party,

then the requirement of threshold will be satisfied regardless of
its gravity. But that harm must be of military nature, military
harm here does not only means the injury, death or destruction
of the protected persons and object, it means any act resulting
adverse effect on the military operation or military capacity of a
party to the conflict.366 Sabotage and other armed or unarmed
activities of that may not kill or injured or destroy protected ones
by they may have adverse effect on the other party, these
activities may case restriction and disturbance in communication
or other military matters. Adverse effects also include capturing
or establishing or exercising control over military personnel,
object, equipment or territory and preventing adverse party from
using them.367 Some other acts like guarding the captured
adversary368, even clearing nines placed by adversary369,
wiretapping adversary’s command370, computer network
exploitation371 or gaining tactical information through hacking,
any of these acts is be enough to fulfill the required threshold of
harm done to the enemy because all of these acts may result or
365
Background doc. DPH 2004, p. 25;. Report DPH 2005, p.33
366
Report DPH 2005, p. 14, pp. 22 and Report DPH 2006, pp. 41f
367
Report DPH 2005, pp. 11 and 29
368
Background doc. DPH 2004, pp. 9 and Report DPH 2005, pp. 15f
369
Report DPH 2005, p. 31
370
Report DPH, p. 29
371
Background Doc.2003, pp. 15 and Report DPH 2005, p. 14
expected to result in harm to the other party. If a civilian refuses

to collaborate with the party to armed conflict as an informant,
scout or lookout then such refusal will not be considered as
“adverse act expected to inflict harm” and would not reach the
required threshold.
In the absence of military harm, if an act resulting in least death,

injury or destruction will fulfil the requirement of threshold of
harm.372 An attack in IHL is defined as an offensive or defensive
act of violence against the adversary.373 The term “against and
adversary” does not specify target but the belligerent nexus of an
attack.374
Prosecutor v Galic case 2003:
In this case ICTY declared that the acts like sniping civilians is
also to be considered as direct participation in hostilities. These
act are also prohibited by IHL as these act violate the principle
of distinction.375
Prosecutor v Strugar case 2005:
In this case the ICTY held that bombarding or shelling to civilian

villages or urban residential areas is likely to inflict injury, death
372
Expert meeting report DPH 2005, pp. 30
373
Art. 49(1) of AP 1
374
Discussion of the Draft Art. 44 of AP 1 during the diplomatic
conference of 1974, p. 93
375
Galic case 2003 of ICTY
or destruction of persons or objects protected against the direct

attacks and thus qualifies as direct participation in hostilities.376
Thus the acts which do not fulfil this element or is not to be

considered as direct participation in hostilities. Some acts that
may even be prohibited under IHL such as interruption in
electricity, food or water and blocking of road may pose a
serious threat to national security but do not qualify as the
participation in hostilities if does not cause any adverse effect to
the military operation or capacity of any party to the armed
conflict nor inflicts death, injury or destruction.
II. direct causation:

For this requirement to be satisfied, there must be a direct causal
link between the act and the harm that has resulted or is likely to
result from that act or even from a large operation of which that
act is an integral part. The term of direct participation in the IHL
conventions suggest that there can be indirect participation in
hostilities as well and indirect participation does not affect the
protection of civilians or other protected persons. Distinction
must be made by both parties between of direct participation and
indirect participation of the persons.
376
Strugar case 2005 of ICTY
In this case ICTY made interpretation regarding to the conduct

of hostilities and other war efforts. It was established that
conduct of hostilities is different from the other activities which
are general part of war effort and war-sustaining activities.377
Generally speaking, beyond the actual conduct of hostilities, the

general war effort include all activities objectively contributing
to the military defeat of the adversary such as design, production
and shipment of weapons and military equipment, construction
or repair of roads, ports, airports, bridges, railways and other
infrastructure outside the context of concrete military operations.
While war-sustaining activities would include political,
economic or media activities supporting the general war effort
such as political propaganda, financial transactions, production
of agricultural or non-military industrial goods. It is important to
note that even general war efforts and war-sustaining activities
may sometimes result in fulfilling the requirement of threshold
of harm and may become as an act of direct participation in
hostilities.
To consider an act as qualified for direct participation the close

causal link between the act and resulting harm.378 Indirect
causation and materially facilitating harm are too wide to be
377
Strugar case of ICTY 2008, Para 174-175
378
According to Commentary AP (above 10), § 4787: “The term
’direct participation in hostilities’ […] implies that there is a sufficient
causal relationship between the act of participation and its
immediate consequences”. See also Report DPH 2005, pp. 30, 34 f
considered as direct participation in hostilities and will involve

almost every act of every individual during the conflict as “direct
participation in hostilities” and it will deprive large numbers of
civilian population from the protection against direct attack.379
That’s why the causation must be direct which means harm must
be or expected to be caused due to the act of the person. Direct
causation means that harm must be caused about in one step
causal step in the chain of events. Therefore, individual conduct
that merely builds up or maintains the capacity of a party to harm
its adversary, or which otherwise only indirectly causes harm, is
excluded from the concept of direct participation in hostilities.
For example, imposing a regime of economic sanctions on a
party to an armed conflict, depriving it of financial assets,380 or
providing its adversary with supplies and services (such as
electricity, fuel, construction material, finances and financial
services)381 would have a potentially important, but still indirect,
impact on the military capacity or operations of that party. Other
examples of indirect participation include scientific research and
design,382 as well as production,383 and transport of weapons and
equipment unless carried out as an integral part of a specific
military operation designed to directly cause the required
threshold of harm. Training and recruiting persons for armed
forces does not account as direct participation, but concept of
mercenaries is not the same. Direct causation is not dependent
379
Background Doc. DPH 2004, pp. 27 and Report DPH 2005, pp.
28,34
380
Background Doc. DPH 2004, pp. 9 and Report DPH 2005, pp. 14
381
Background Doc. DPH 2004, pp. 14
382
Report DPH 2006, pp. 48
383
Report DPH 2003, p. 2, 2004 p. 6, 2005 pp. 15,21,28,34,38, 2006
pp. 48, 60, 2008 pp. 63
on the indispensability (absolutely necessary) of the act to the

causation of harm. For example weapons are the cause of harm
and the financing and production is indispensable but it will not
be the direct causation of harm its product is not a direct cause
of harm. But for example if a person is serving as a look out
during an ambush may be considered as directly participating in
hostilities although his contribution may not be indispensable to
the causation of harm, it has a direct causal link (one step away).
The required standard of direct causation of harm must take into

account the collective nature and complexity of contemporary
military operations. For example, attacks carried out by
unmanned aerial vehicles may simultaneously involve a number
of persons, such as computer specialists operating the vehicle
through remote control, individuals illuminating the target,
aircraft crews collecting data, specialists controlling the firing of
missiles, radio operators transmitting orders, and an overall
commander.384 While all of these persons are integral to that
operation and directly participate in hostilities, even if only few
of them carry out activities that, in isolation, could be said to
directly cause the required threshold of harm. Where a specific
act does not on its own directly cause the required threshold of
harm, the requirement of direct causation would still be fulfilled
where the act constitutes an integral part of a concrete and
coordinated tactical operation that directly causes such harm.385
Examples of such acts would include, inter alia, the
384
385
Report DPH 2004, pp. 5, Report DPH 2005, pp. 35
identification and marking of targets,386 the analysis and

transmission of tactical intelligence to attacking forces,387 and
the instruction and assistance given to troops for the execution
of a specific military operation.388
Requirement of the direct causation refers to the degree of casual

proximity (nearness) which is not to be confused with the
temporary nearness or geographical nearness. Causal nearness
of harm basically refers to nearness of casual link between harm
and act of a person. It is not dependent on geographical nearness
of an act and harm whether temporary or not. For example, it has
become quite common for parties to armed conflicts to conduct
hostilities through delayed (i.e. temporally remote) weapons-
systems, such as mines, booby traps and timer-controlled
devices, as well as through remote-controlled (i.e.
geographically remote) missiles, unmanned aircraft and
computer network attacks. The causal relationship between the
employment of such means and the ensuing harm remains direct
regardless of temporal or geographical proximity. Even if the
temporal and geographical proximity suggest that a person is
directly participating in hostilities but still these factors would
not be appropriate if there is absence of direct causation.389
386
Background Doc. DPH 2004, pp. 13 and Report DPH 2004, pp.
11,24, Report DPH 2005, pp. 31
387
Report DPH 2005, pp. 28,31
388
389
Selected examples:
Driving an ammunition truck: The delivery by a civilian truck

driver of ammunition to an active firing position at the front line
would almost certainly have to be regarded as an integral part of
ongoing combat operations and, therefore, as direct participation
in hostilities.390 Transporting ammunition from a factory to a
port for further shipping to a storehouse in a conflict zone, on the
other hand, is too remote from the use of that ammunition in
specific military operations to cause the ensuing harm directly.
Although the ammunition truck remains a legitimate military
objective, the driving of the truck would not amount to direct
participation in hostilities and would not deprive a civilian driver
of protection against direct attack.391 Therefore, any direct attack
against the truck would have to take the probable death of the
civilian driver into account in the proportionality assessment.392
390
Background Doc. HD 2004, p. 28; Report D 2006, p. 48. Similar
reasoning was recently adopted in domestic jurisprudence with
regard to “driving a vehicle containing two surface-to-air missiles in
both temporal and spatial proximity to both ongoing combat
operations” (U.S. Military Commission, USA v. Salim Ahmed Hamdan,
December 2007, p. 6) and “driving the ammunition to the place from
which it will be used for the purposes of hostilities” (Israel J, PCATI v.
Israel, above 24, § 35).
391
Report DPH 2006, p. 48
392
See also Report DPH 2005, pp. 32 f. Although it was recognized
during the expert meetings that a civilian driver of an ammunition
truck may have to face the risk of being mistaken for a member of
the armed forces, it was also widely agreed that any civilian known
to be present in a military objective had to be taken into account in
the proportionality equation, unless and for such time as he or she
directly participated in hostilities ( Report DPH 2006, pp. 72 f)
Voluntary human shields: The same logic applies to civilians

attempting to shield a military objective by their presence as
persons entitled to protection against direct attack (voluntary
human shields). Where civilians voluntarily and deliberately
position themselves to create a physical obstacle to military
operations of a party to the conflict, they could directly cause the
threshold of harm required for a qualification as direct
participation in hostilities.393 This scenario may become
particularly relevant in ground operations, such as in urban
environments, where civilians may attempt to give physical
cover to fighting personnel supported by them or to inhibit the
movement of opposing infantry troops.394 Conversely, in
operations involving more powerful weaponry, such as artillery
or air attacks, the presence of voluntary human shields often has
no adverse impact on the capacity of the attacker to identify and
destroy the shielded military objective. Instead, the presence of
civilians around the targeted objective may shift the parameters
of the proportionality assessment to the detriment of the attacker,
thus increasing the probability that the expected incidental harm
would have to be regarded as excessive in relation to the
anticipated military advantage.395 The very fact that voluntary
393
This view was generally shared during the expert meetings
(Report DPH 2006, pp. 44 ff.; Report DPH 2008, pp. 70 ff.)
394
During the expert meetings, this scenario was illustrated by the
concrete example of a woman who shielded two fighters with her
billowing robe, allowing them to shoot at their adversary from
behind her (Report DPH 2004, pp. 6 f
395
See Art. 51 [5] (a) AP 1 and, for the customary nature of this rule
in international and non-international armed conflict, Customary IHL,
above N 7, Vol. , Rule 14. For the relevant discussion during the
human shields are in practice considered to pose a legal – rather

than a physical – obstacle to military operations demonstrates
that they are recognized as protected against direct attack or, in
other words, that their conduct does not amount to direct
participation in hostilities. Indeed, although the presence of
voluntary human shields may eventually lead to the cancellation
or suspension of an operation by the attacker, the causal relation
between their conduct and the resulting harm remains indirect.396
Depending on the circumstances, it may also be questionable
whether voluntary human shielding reaches the required
threshold of harm. The fact that some civilians voluntarily and
deliberately abuse their legal entitlement to protection against
direct attack in order to shield military objectives does not,
without more, entail the loss of their protection and their liability
to direct attack independently of the shielded objective.397
Nevertheless, through their voluntary presence near legitimate
military objectives, voluntary human shields are particularly
exposed to the dangers of military operations and, therefore,
expert meetings, see Report DPH 2004, pp. 6 f.; Report DPH 2006,
pp. 44 ff.; Report DPH 2008, p. 70
396
While there was general agreement during the expert meetings
that involuntary human shields could not be regarded as directly
participating in hostilities, the experts were unable to agree on the
circumstances in which acting as a voluntary human shield would, or
would not, amount to direct participation in hostilities. For an
overview of the various positions, see Report DPH 2004, p. 6; Report
DPH 2006, pp. 44 ff.; Report DPH 2008, pp. 70
397
See also Art. 51 [7] and [8] AP 1 , according to which any violation
of the prohibition on using civilians as human shields does not
release the attacker from his obligations with respect to the civilian
population and individual civilians, including the obligation to take
the required precautionary measures.
incur an increased risk of suffering incidental death or injury

during attacks against those objectives.398
III. BELIGERENT NEXUS:

An act must be carried in such a way that it directly caused the
required threshold of harm to the other party in support of one
party to fulfil this third element of requirement. Not every act
that fulfil the requirement of threshold of harm necessarily
amounts to the direct participation in hostilities. Acts must be
closely related to the hostilities conducted by the two parties in
an armed conflict that it constitute an integral part of the armed
conflict. Such act must be done in support of a party and should
harm the other party and this connection and support is known
as belligerent nexus. If the violent acts of a person are neither
designed to support one party nor designed to harm the other
party to the armed conflict, then such acts are not to be
considered as direct participation in hostilities.399 And will
remain non-hostile unless it meets the threshold and creates a
separate armed conflict.
Belligerent nexus is different from the subjective intention and

hostile intent of a person which are related to the state of mind
of the person, it relates to the object purpose of an act. It is not
dependent on factors like personal distress, mental ability or
willingness of a person conducting the act. If he is intending and
acting to support one party and harm other, his belligerence is
sufficient enough to be considered as direct participation in
398
143 See Report DPH 2004, p. 7; Report DPH 2008, pp. 71 f
399
hostilities. Accordingly, even civilians forced to directly

participate in hostilities400 or children below the lawful
recruitment age401 may lose protection against direct attack.
Only in exceptional situations could the mental state of civilians
call into question the belligerent nexus of their conduct. This
scenario could occur, most notably, when civilians are totally
unaware of the role they are playing in the conduct of hostilities
(e.g. a driver unaware that he is transporting a remote-controlled
bomb) or when they are completely deprived of their physical
freedom of action (e.g. when they are involuntary human shields
physically coerced into providing cover in close combat).
Civilians in such extreme circumstances cannot be regarded as
performing an action (i.e. as doing something) in any meaningful
sense and, therefore, remain protected against direct attack
despite the belligerent nexus of the military operation in which
they are being instrumented. Many activities even fulfil the first
two requirements, but are still not considered as direct
400
It should be noted, however, that civilians protected under the
Fourth Geneva Convention may not be compelled to do work
“directly related to the conduct of military operations” or to serve in
the armed or auxiliary forces of the enemy (Arts 40 [2] and 51 [1] GC
IV), and that civilian medical and religious personnel may not be
compelled to carry out tasks which are not compatible with their
humanitarian mission (Art. 15 [3] AP 1 ; Art. 9 [1] AP 2)
401
Therefore, all parties to an armed conflict are obliged to do
everything feasible to ensure that children below the age of 15 years
do not directly participate in hostilities and, in particular, to refrain
from recruiting them into their armed forces or organized armed
groups (Arts 77 [2] AP 1; 4 [3] (c) AP 2; Customary IHL, above N 7,
Vol. 1, Rule 137). Of course, as soon as children regain protection
against direct attack, they also regain the special protection afforded
to children under IHL ( Arts 77 [3] AP 1; 4 [3] (d) AP 2 )
participation due to lack of belligerent nexus. The military

operations of a party to a conflict can be directly and adversely
affected when roads leading to a strategically important area are
blocked by large groups of refugees or other fleeing civilians.
However, the conduct of these civilians is not specifically
designed to support one party to the conflict by causing harm to
another and, therefore, lacks belligerent nexus. This analysis
would change, of course, if civilians block a road in order to
facilitate the withdrawal of insurgent forces by delaying the
arrival of governmental armed forces (or vice versa).
• Belligerent Nexus in different important situations:

Individual self-defense: The causation of harm in individual self-
defense or defense of other against violence prohibited under
IHL lacks belligerent nexus.402 For example, although the use
force by civilians to defend themselves against unlawful attack
or looting, rape, and murder by marauding soldiers may cause
the required threshold of harm, its purpose clearly is not to
support a party to the conflict against another. If individual self-
defense against prohibited violence were to entail loss of
protection against direct attack, this would have the absurd
consequence of legitimizing a previously unlawful attack.
Therefore, the use of necessary and proportionate force in such
situations cannot be regarded as direct participation in
hostilities.403
402
This was also the prevailing opinion during the expert meetings
(see Report DPH 2003, p. 6; Background Doc. DPH 2004, pp. 14, 31 f.)
403
The use of force by individuals in defense of self or others is an
issue distinct from the use of force by states in self-defense against
Exercise of power or authority over persons or territory: IHL

makes a basic distinction between the conduct of hostilities and
the exercise of power or authority over persons or territory. As a
result, the infliction of death, injury, or destruction by civilians
on persons or objects that have fallen into their “hands”404 or
“power”405 within the meaning of IHL does not, without more,
constitute part of the hostilities. For example, the use of armed
force by civilian authorities to suppress riots and other forms of
civil unrest,406 prevent looting, or otherwise maintain law and
order in a conflict area may cause death, injury, or destruction,
but generally it would not constitute part of the hostilities
conducted between parties to an armed conflict.407 Likewise,
once military personnel have been captured (and, thus, are hors
de combat), the suppression of riots and prevention of escapes408
or the lawful execution of death sentences409 is not designed to
directly cause military harm to the opposing party to the conflict
and, therefore, lacks belligerent nexus.410
an armed attack, which is governed by the jus ad bellum and is

beyond the scope of this study.
404
E.g. Art. 4 GC IV
405
E.g. Art. 5 GC III; Art. 75 [1] AP 1
406
On the belligerent nexus of civil unrest, see below 169 and
accompanying text
407
Treaty IHL expressly confirms the law enforcement role, for
example, of occupying powers (Art. 43 H IV ) and States party to a
non-international armed conflict (Art. 3 [1] AP 2)
408
E.g. Art. 42 GC III
409
E.g. Art. 100 and 101 GC III
410
Report DPH 2004, p. 4; Report DPH 2005, p. 11; Report DPH 2006,
pp. 43 f.; Report DPH 2008, pp. 67 f
Civil unrest: During armed conflict, political demonstrations,

riots, and other forms of civil unrest are often marked by high
levels of violence and are sometimes responded to with military
force. In fact, civil unrest may well result in death, injury and
destruction and, ultimately, may even benefit the general war
effort of a party to the conflict by undermining the territorial
authority and control of another party through political pressure,
economic insecurity, destruction and disorder. It is therefore
important to distinguish direct participation in hostilities – which
is specifically designed to support a party to an armed conflict
against another – from violent forms of civil unrest, the primary
purpose of which is to express dissatisfaction with the territorial
or detaining authorities.411
Inter-civilian violence: Similarly, in order to become part of the

conduct of hostilities, use of force by civilians against other
civilians, even if widespread, must be specifically designed to
support a party to an armed conflict in its military confrontation
with another.412 This would not be the case where civilians
merely take advantage of a breakdown of law and order to
commit violent crimes.413 Belligerent nexus is most likely to
exist where inter-civilian violence is motivated by the same
political disputes or ethnic hatred that underlie the surrounding
armed conflict and where it causes harm of a specifically
military nature.
411
Report DPH 2004, p. 4; Report DPH 2008, p.67
412
Report DPH 2004, p. 4; Report DPH 2005, p. 8,11
413
Prosecutor v Rutaganda case, Para 570
Determination of belligerent nexus must be based on the

information reasonably available to the person called on to make
the determination, but they must always be deduced from
objectively verifiable factors.414 In practice, the decisive
question should be whether the conduct of a civilian, in
conjunction with the circumstances prevailing at the relevant
time and place, can reasonably be perceived as an act designed
to support one party to the conflict by directly causing the
required threshold of harm to another party. As the
determination of belligerent nexus may lead to a civilian’s loss
of protection against direct attack, all feasible precautions must
be taken to prevent erroneous or arbitrary targeting and, in
situations of doubt, the person concerned must be presumed to
be protected against direct attack.
•END OF DIRECT PARTICIPATION AND

REGAINING OF PROTECTION:
Direct participation in hostilities ends when those who are
participating in hostilities lay down their arms and become hors
de combat. If a civilian or non-combatant member of armed
forces stop taking part in hostilities before becoming hors de
combat, they would regain their protected status against direct
attack. But during their time of participation, they lose their
protected status.
414
Report DPH 2005, p. 9,22,26,28,34,40
SUMMARY OF THE UNIT
I. For a specific act to reach the threshold of harm

required to qualify as direct participation in
hostilities, it must be likely to adversely affect the
military operations or military capacity of a party to
an armed conflict. In the absence of military harm,
the threshold can also be reached where an act is
likely to inflict death, injury, or destruction on
persons or objects protected against direct attack. n
both cases, acts reaching the required threshold of
harm can only amount to direct participation in
hostilities if they additionally satisfy the
requirements of direct causation and belligerent
nexus
II. In order to meet the requirement of belligerent
nexus, an act must be specifically designed to
directly cause the required threshold of harm in
support of a party to an armed conflict and to the
detriment of another. As a general rule, harm caused
(a) in individual self-defence or defence of others
against violence prohibited under,
(b) in exercising power or authority over persons or
territory,
(c) as part of civil unrest against such authority, or
(d) during inter-civilian violence lacks the
belligerent nexus required for a qualification as
direct participation in hostilities.
III. The requirement of direct causation is satisfied if
either the specific act in question, or a concrete and
coordinated military operation of which that act

constitutes an integral part, may reasonably be
expected to directly – in one causal step – cause
harm that reaches the required threshold. however,
even acts meeting the requirements of direct
causation and reaching the required threshold of
harm can only amount to direct participation in
hostilities if they additionally satisfy the third
requirement, that of belligerent nexus.
UNIT: VI
PROTECTION OF PRISONERS OF WAR
INTRODUCTION
Although combatants and other persons taking a direct part in

hostilities are military objectives and may be attacked, the
moment such persons surrender or are rendered hors de combat,
they become entitled to protection. That protection is provided
for in Common Article 3 and the First and Third Geneva
Conventions (GC) relating to the treatment of the ‘wounded, sick
and shipwrecked’ and ‘prisoners of war’ (POW) respectively;
supplemented (for international conflicts) by Additional
Protocol I. These conventions are binding as treaty law, but the
key provisions are in any event customary in nature.
Humanitarian treatment of prisoners of war was not emphasized

until the second half of the nineteenth century. 415 The Hague
Regulations did not prevent many of the hardships that prisoners
415
International law; Oppenheim; p.367 (Lauterpacht) 1952
suffered during World War I; they did provide an enlightened

basis for regulation. Besides the failure to anticipate the
problems that arose in World War I, the chief defect of the
regulations were a lack of specificity and the absence of any
enforcement procedures. After the First World War, a
conference at Geneva adopted new, more elaborate rules416. Like
the prior rules, the new rules did not anticipate the new modes
of warfare adopted in the Would War that followed their
acceptance.
BACKGROUND
The Third Geneva Convention of 1949 (the Prisoners of War

Convention) contains no provisions specifically regulating the
circumstances in which prisoners of war can be photographed.
The only article which touches on the subject is Article 13,
paragraph 2, which states that: "... prisoners of war must at all
times be protected, particularly against acts of violence or
intimidation and against insults and public curiosity." This
prohibition is not new. Article 2, paragraph 2 of the 1929 Geneva
Prisoners of War Convention used almost identical language:
"[Prisoners of war] shall at all times be humanely treated and
protected, particularly against acts of violence, from insults and
from public curiosity." According to Flory,417 writing during
416
Convention Relating to the Treatment of Prisoners of War, July
27, 1929
417
William E. S. Flory, Prisoners of War: A Study in the Development
of International Law, 1942, Washington D.C., American Council on
Public Affairs, p. 39
World War II about the negotiations which resulted in the 1929

Convention, it was: "a general principle, frequently affirmed...
that prisoners must be treated with humanity... The German
delegate suggested that the conference of 1929 substitute for the
Hague statement418 a requirement that they be protected against
death, wounds, bad treatment, robbery, injuries, and public
curiosity, but the conference accepted a modification of the
Hague rule in stating that they must be treated at all times with
humanity and must be protected especially against acts of
violence, insults and public curiosity" .419 The 1929 Convention
provision was the basis for the trial of Lieutenant General Kurt
Maelzer before a United States Military Commission in
Florence, Italy, in September 1946.420 Maelzer, the commander
of the German garrison in Rome in January 1944, had been
ordered by Field Marshal Kesselring, commander of the German
forces in Italy, to parade several hundred British and American
prisoners of war through the streets of the Italian capital, in order
to boost Italian morale. During the parade, onlookers threw
sticks and stones at them. Numerous photographs were taken and
published in the Italian press, under the caption "Anglo-
Americans enter Rome after all ... flanked by German
bayonettes". Maelzer was convicted of "exposing prisoners of
war ... in his custody ... to acts of violence, insults and public
curiosity", and was sentenced to ten years' imprisonment, later
418
Article 4 of the Hague Regulations of 1907 said no more than that
"They must be humanely treated".
419
Flory added that the German delegate was dissatisfied with the
Hague rule on the ground that "the definition of 'humanity' is not
uniform throughout the world".
420
The case of Kurt Maelzer, War Crimes Report 11 (1949) 53. 6
reduced to three years.421 But taking and publishing photographs

of prisoners of war was hardly a new phenomenon in 1944. Most
accounts of warfare since photography became popular and
widespread in the early part of this century have contained such
pictures422. Over the last seventy-five years or so these have
ranged from prisoners depicted at the moment of surrender;423
421
The International Military Tribunal in Tokyo similarly condemned
the Japanese practice of "parading prisoners of war through cities
and exposing them to ridicule and insults". See the UK Manual of
Military Law, Part III, London, H.M.S.O., 1958, p. 51. Another
instance from the Second World War where allied prisoners were
exposed to the wrath of the local population, on this occasion with
fatal results, was the Essen Lynching case (Heyer and others, War
Crimes Reports 1 (1947) 88). Captain Heyer, a German officer, gave
instructions that a party of three allied officers were to be escorted
to a Luftwaffe unit for interrogation. He ordered their guards not to
interfere if civilians should attempt to molest them. These
instructions were given in a loud voice, and in the hearing of a crowd
of civilians. When the prisoners reached one of the main streets in
Essen, they were attacked by the crowd and eventually thrown over
the parapet of a bridge to their deaths. However, the charge
preferred against Captain Heyer and his six co-accused at their trial
by a British Military Court in December 1945 appears to have made
no reference to the prisoners' exposure to insults and public
curiosity (understandably, in view of the fact that they suffered far
worse consequences), but instead alleged that "in violation of the
laws and usages of war, [they] were, with other persons, concerned
in the killing of three unidentified British airmen, prisoners of war"
422
See, e.g., The Times History of the War, two volumes of which are
cited in Notes 13 and 14 below
423
E.g. Korea — The First War We Lost, Bevin Alexander, Hippocrene
Books, New York, 1986, following p. 448, showing Americans
emerging from a cave to surrender to Chinese soldiers. A further
example, referred to by H. Levie in The Falklands War (Coll and
receiving medical treatment on the battlefield;424 awaiting

evacuation;425 marching into captivity;426 on board ship;427
digging trenches;428 undertaking agricultural work;429 and
occasionally even during detention in a prisoner-of-war camp
Arends, eds.), Allen & Unwin, Boston, 1985, p. 72, is the widely-
publicised photograph of the British Royal Marines surrendering at
Port Stanley, showing a number of Marines lying face down on the
ground
424
E.g. S. H. Best's The Story of The British Red Cross, Cassell & Co.
Ltd., 1938, which opposite p. 144 shows a British medical officer
tending a wounded Turk after the battle of Tikrit in November 1917.
425
E.g. The Longest War — The Iran-Iraq Military Conflict, Dilip Hiro,
Grafton Books, London, 1989, which includes (following p. 136) a
picture of Iraqi prisoners of war taken in February 198
426
E.g. At the Going Down of the Sun, Oliver Lindsay, Hamish
Hamilton, London, 1981, opposite p. 152, which includes a picture of
allied prisoners of war marching to Shamuipo Camp, Hong Kong, on
30 December 1941, watched by Japanese soldiers, four days after
Hong Kong surrendered.
427
E.g. British Forces in the Korean War, ed. Cunningham-Boothe
and Farrar, The British Korean Veterans Association, Leamington Spa,
1988, p. 132, showing North Korean and Chinese prisoners captured
by Royal Marines and held aboard H.M.S. Belfast
428
See, e.g. Vol. VI of The Times History of the War, The Times,
London, 1916, which on p. 262 shows "British prisoners at work —
digging trenches in Germany and preparing wood for supports for
the trenches"
429
See, e.g. Vol. XII of The Times History of the War, The Times,
London, 1917, which on p. 246 shows "British Prisoners of War
engaged in farm work"
• PRISONERS OF WAR DEFINED

The Third Geneva Convention of 1949 is concerned with
prisoners of war and consists of a comprehensive code centered
upon the requirement of humane treatment in all circumstances.
The definition of prisoners of war in GC III, Article 4(A) is of
particular importance since it has been regarded as the
elaboration of combatant status. It covers members of the armed
forces of a party to the conflict, as well as irregulars such as
members of militia or volunteer corps that fight alongside a party
to the conflict, provided they satisfy four conditions: being
‘commanded by a person responsible for his subordinates;
having a fixed distinctive sign recognizable at a distance;
carrying arms openly; and conducting operations in accordance
with the laws and customs of war.’
This article reflected the experience of the Second World War,

although the extent to which resistance personnel were covered
was constrained by the need to comply with the four conditions.
Since 1949, the use of guerrillas spread to the Third World and
the decolonization experience. Accordingly, pressures grew to
expand the definition of combatants entitled to prisoner of war
status to such persons, who practice has shown rarely complied
with the four conditions.
Colombian Constitutional case 2007:
In this case the Colombian court held that combatants have right
to take part in hostilities and are considered a legitimate military
target, but also the ability to confront other combatants or
persons taking part in hostilities. They have right to receive
special treatment as P.O.W when placed hors de combat by

surrendering, being captured or wounded.430
Johnson v Eisentrager case:
In this case the question about whether the P.O.W have the right
to sue or not. The court held that they can be heard and have right
to submit petition before the court, the P.O.W will be then
produced before the court. Granting them writ means that army
must transport them to the place of hearing to defend legality of
the sentence.431
Military Tribunal Nuremburg:
It was held that purpose of war is neither to take revenge nor to

punish the P.O.Ws , but solely their protective custody, the only
purpose of their custody is to prevent them from further
participating in hostilities, killing helpless people is against the
customs of war.432
NO ADVERSE DISTINCTION:
They must be provided with regular medical assistance,433 their

honor must be respected and there must be no discrimination on
the bases of sex, rank, race, nationality, religion, political
opinion434 and gender especially for women.435 Only preference
430
Colombian Constitutional case 2007
431
Johnson v Eisentrager case
432
Judgment of Nuremberg Trails
433
Art. 15 of GC3
434
Art.16 of GC 3
435
Art. 14 of GC 3
given to them must be in medical assistance on the bases of age

and state of health.436
RESPONSIBILIRY TOWARS P.O.Ws:
Responsibility of the treatment and protection of P.O.Ws lies on

the Detaining power.437 One transfer of the P.O.Ws from one
Power to another the duties of their protection and treatment is
also transferred, if the power to whom they have been transferred
is not performing their duties with respect the protection and
protection of P.O.Ws then the power who transferred them must
notify the other power to return their custody to correct the
situation.438
EVACUATION:
P.O.Ws after they fall under the hands of adverse party are to be
evacuated far from the battle field for their security to the camps.
They may be temporarily kept in the danger zone because they
may be wounded or sick and unable to be evacuated due to their
state of health, they must not be exposed to danger.439
Evacuating P.O.Ws must be provided with medical assistance,
food, water, clothing and security from danger, they must be
treated humanely during evacuation as well.440 If their save
evacuation is impossible due to the unusual circumstances then
436
Art. 16 of GC 3
437
Art. 12 of GC 3
438
Art. 12 of GC 3
439
Art. 19 of GC 3
440
Art.20 of GC 3
they must be released and possible precaution should be taken to

ensure their safety.441
RESOURCES:
P.O.Ws must be kept in areas where environment is healthy and

climate is not injurious to their health.442 They shall be provided
with proper favorable quarters adequately heated, lighted and
protected from dampness.443 They must be provided with regular
food of good quality, quantity and variety to keep them healthy
and safe from deficiencies and weight loss. They must be
allowed to use tobacco.444 They must be provided with clothes,
under wears and foot wears of reasonable quality according to
the climate changes.445 There must be medical centers in the
camps to provide medical attention if required by P.O.Ws, if
suffering from serious disease they must be admitted to military
or civil medical units for the hospitality purpose.446 Medical
inspection must be conducted once every month to determine
weight, health, nutrition, cleanliness and disease for P.O.Ws.447
They must be provided with the religious freedom to exercise
441
Art. 41(3) of AP 1
442
Art. 22 of GC 3
443
Art.25 of GC3
444
Art. 26 of GC 3
445
Art. 27 of GC 3
446
Art. 28 of GC 3
447
Art. 29 of GC 3
their religious activities.448 P.O.Ws also possess right to make a

request or complaint to the detaining power.449
SECURITY:
The presences of P.O.Ws must neither be held captives in areas

where they are exposed to the danger nor used as human shield
to render certain areas immune from the military operations of
adverse party. They must be provided with shelter against aerial
attacks. Adverse party must be notified about their location for
their security. P.O.W camps must be indicated with letters such
as PG or PW placed in such manner that they become visible
from the air.450 If P.O.W tries to escape they must be given
warning before use of weapon as it would constitute extreme
measure.451
Prosecutor v Blaskic case:
In conclusion to this case the trail chamber held that the P.O.Ws
were held as human shield on the orders of General Blaskic for
his headquarters in Vitez. This inflicted considerable mental
suffering upon the persons involved as they were P.O.Ws no
longer taking part in combat operations. By this act they suffered
inhumane treatment and General Blaskic is convicted of war
crime for the violation of principle of distinction.452
448
Chapter V of GC 3
449
Art
450
Art. 23 of GC 3
451
Art. 42 of GC 3
452
Prosecutor v Blaskic case
Prosecutor v Karadzic case:
In this case the chamber held that the use of human shield, by
the placement or detention of P.O.Ws in area where they may be
exposed to combat operation for the purpose of rendering certain
areas or activities immune from military operations or enemy
attacks is prohibited under IHL. The prohibition of use of human
shield does not depend upon the actual harm or attack. It is
unlawful and does not matter whether either way.453
1. STATUS DETERMINATION
Under International Humanitarian Law (IHL), ‘combatant’s
privilege’ entails three important consequences. First, the
privileged combatant is allowed to conduct hostilities and as
such cannot be prosecuted for bearing arms or attacking enemy
targets, unless the conduct amounts to a war crime.454 Second,
he or she is a legitimate target to the opposing forces. Third, in
the event of capture, such combatants are afforded POW status.
The group of persons entitled to combatant’s privilege, and in

the event of capture to prisoner of war status, is defined in GC
III, Article 4(A). These include members of the armed forces of
another party, as well as irregulars such as members of militia or
453
Prosecutor v Karadzic case
454
Privileged or lawful combatants are subject to capture and
detention as prisoners of war, and can be prosecuted only for
serious crimes such as war crimes or crimes against humanity,
whereas unprivileged or unlawful combatants can in addition, are
subject to trial and punishment by military tribunals for acts which
render their belligerency unlawful.
volunteer corps that fight alongside a party to the conflict,

provided they satisfy four conditions: being ‘commanded by a
person responsible for his subordinates; having a fixed
distinctive sign recognizable at a distance; carrying arms openly;
and conducting operations in accordance with the laws and
customs of war.’
POW status is therefore automatically due to persons who fought

in the armed forces of a state. The fact that the government was
not the recognized representative of the state is irrelevant. It
should be noted that the criteria set forth by Article 4 of the Third
Geneva Convention only apply to irregulars that fight alongside
a party to the conflict and not to the armed forces of a party to
the conflict itself. In the event that there is an element of doubt
on the status of an irregular, the matter must then be determined
by a competent tribunal. The prisoners must be presumed POWs
pending such determination.455 Moreover, the onus is on a
Detaining Power to demonstrate that detainees, purportedly
captured for their role in the conduct of hostilities, do not deserve
POW status.456 This significant burden corresponds to the
serious consequences for the combatants in question, including
penal consequences457 and loss of their entitlement to the
enhanced rights protections due to POWs under GC III which in
455
See Article 5 (2) GC III on the independent tribunal that must be
established in case of doubt.
456
The presumption of POW status is reflected in Article 45(1) and
(2) AP I, and can only be displaced by a tribunal.
457
They may be prosecuted for mere participation as opposed to
only for crimes under international law.
some respects go beyond those guaranteed by International

Human Right Law.
However, on numerous occasions, states have, as a matter of

practice, extended POW status to cover persons not strictly
entitled to such status under the convention, as was for example
the practice of the United States in Vietnam. This may reflect in
part the core humanitarian principles reflected in IHL manifest
in the specific provisions of GC III, but also the desire to ensure
similar treatment of their own forces if captured.
2. RIGHTS OF A PRISONER OF WAR

The Third Geneva Convention is now the authoritative statement
concerning prisoners of war. An outstanding innovation of the
convention, in addition to its application to all other armed
conflicts is that it refers to internal wars458. The convention
defined prisoners in a way calculated to include every person
likely to be captured in hostilities. Full and primary
responsibility for the treatment of prisoners of war fall upon the
Detaining Power, not upon the individuals. The Detaining Power
is under a general obligation to treat prisoners humanely and
protect them from danger.459 They must be supplied with food,
clothing and medical attention.460 They should be protected from
public curiosity.461 They are also entitled to elaborate due
458
International law cases and materials; Lori Damrosch, Louis
Henkin, Richard Crawford Pugh, Oscar Schachter, Hans Smith (Eds);
p.1621 (USA)2001
459
Article 19 GC III
460
Article 20 GC III
461
Article 13 GC III
process guarantees, including trial by the courts that respect the

same standards of justice as those respected by the courts that
would try the military of the detaining state.462 Medical and
scientific experiments are prohibited. Prisoners are to be treated
alike regardless of race, nationality, religious beliefs or political
opinions.463
At the time of detention, the prisoner is required to give a

minimum of information. He is not to be subjected to torture and
may retain his personal effects.464 Conditions at the detention
camp must meet standards provided in the convention.465 The
work that the prisoner is required to perform must not be
inherently dangerous, humiliating or directly connected with the
operations of war.466 The prisoner must be permitted contact
with his family and correspondence privileges.467 Procedures
must be established for registering complaints against the
administration of the detention camp.468 Penal and disciplinary
sanctions, including procedures for determining guilt, are
prescribed by the convention.469 The convention also provides
that the properties of prisoners shall not be disposed of them
462
Article 84, 99-108 GC III
463
Article 16 GC III
464
Article 17 GC III
465
Article 22 and 23 GC III
466
Article 51,52 and 56 GC III
467
Section V Article 70-73 GC III
468
Article 78-90 GC III
469
Article 82-88 GC III
when arrested.470 When hostilities have ceased, POWs must be

repatriated.471
The convention elaborates the idea of a Protecting Power

appointed by mutual agreement, which determines whether the
provisions of the convention are being followed. When the
belligerents are unable to agree upon such an appointment, the
detaining power is required to request a neutral state, an
impartial organization, or a humanitarian organization to
substitute for the Protecting Power. Each contraction party
undertakes to provide penal sanctions against person who
violates the established norms. Parties to the conventions are
obligated to search out those persons alleged to have committed
such breach.
Many of the general provisions of the third Geneva Convention

on prisoners of war are incorporated into the First and Second
Geneva Conventions with respect to the wounded and sick in
armed forces in the field or at sea.
3. INFORMATION ON REASONS FOR ARREST

AND DETENTION
The very first requirement for there to be a valid detention in
international law is that there be clear reasons for an arrest
provided in law, followed by the duty to determine the prisoners’
status, then information concerning these matters should be
470
Article 18 GC III
471
Article 118 GC III provides that ‘POWs shall be released and
repatriated without delay after the cessation of active hostilities.’
conveyed to the prisoners themselves. Only once this has

happened can they assert the precise rights that correspond to
them under international law. The right to such information is
enshrined as one of the minimal standards of protection due to
persons in the hands of the enemy under IHL and in Human
Rights Law (HRL).
Article 75 (3) of AP I provides:
Any person arrested, detained or interned for actions

related to the armed conflict shall be informed promptly,
in a language he understands, of the reasons why these
measures have been taken. Except in cases of arrest or
detention for penal offences, such persons shall be
released with the minimum delay possible and in any
event as soon as the circumstances justifying the arrest,
detention or internment have ceases to exist.472
The right to be informed promptly of the reasons for detention

under IHL thus applies to persons detained for any reason related
to the conflict. It does not depend on the person being suspected
of a criminal offence.
There is no precise time frame associated with the requirement

of ‘promptness’, as account must be taken of all the
circumstances including (for as long as relevant) military
considerations arising out of the detention of persons in the zone
of battle. However, as the ICRC Commentary to the Additional
Protocol itself makes clear, ‘even in time of armed conflict,
detaining a person for longer than, say, ten days, without
472
Emphasis ours.
informing the detainee of the reasons for his detention would be

contrary to this paragraph’.473
The detainees therefore have a right to be informed of the

reasons for their arrest under the minimum rules of IHL
protection applicable to all persons and under Human Rights
Law.
4. PERSON WHO ACCOMPANIES THE ARMED

FORCES WITHOUT ACTUALLY BEING THE
MEMBERS THEREOF 474
the government experts , like the drafters of article 81 of the 1989

convention considered it preferable to keep such a system where
the status of POW is granted to persons holding identity cards
even if some prisoners such as in ww2 were taken from the status
as they lost their cards. The application of this notion hence is
dependent upon the authorization of the individual to accompany
the armed forces, tho the card works mere as a proof or a
symbolic status in case of doubt the question must be solved as
to article 5 of gc3
473
Article 73(3) GC III
474
Article 4 gc3
5. PERSON WHOSE STATUS IS IN DOUBT

If any doubt arises if the person belongs to one of the
categories named in the convention that person shall have
benefit of the present convention until his or her status is
determined by some responsible authority 475
Numerous military manuals specify that

combatants must distinguish themselves from
the civilian population476
Several military manuals remark that the obligation to
distinguish oneself does not pose a problem for the regular
armed forces because it is “customary” or “usual” for members
of the regular armed forces to wear a uniform as a distinctive
sign477
475
17th international red cross conference , draft revised or new
conventions,p54
476
the military manuals of Argentina (ibid., § 5), Australia (ibid., § 6),
Belgium (ibid.,
§ 7), Benin (ibid., § 8), Cameroon (ibid., § 9), Canada (ibid., § 10),
Colombia (ibid., § 11), Croatia
(ibid., §§ 12–13), France (ibid., § 15), Germany (ibid., § 16), Hungary
(ibid., § 17), Israel (ibid.,
§ 18), Italy (ibid., §§ 19–20), Kenya (ibid., § 21), Madagascar (ibid., §
22), Netherlands (ibid.,
§ 23), New Zealand (ibid., § 24), South Africa (ibid., § 25), Sweden
(ibid., § 26), Switzerland
(ibid., § 27), Togo (ibid., § 28), United Kingdom (ibid., § 29) and
United States (ibid., §§ 30–31).
477
the military manuals of Australia (ibid., § 6), Belgium (ibid., § 7),
Colombia (ibid., § 11),
If members of regular armed forces do not wear a uniform, they

risk being charged as spies or saboteurs.478
In the Swarka case in 1974, an Israeli Military Court found that

members of the Egyptian armed forces who had infiltrated
Israeli territory and launched an attack in civilian attire were not
entitled to prisoner-of-war status and could be prosecuted as
saboteurs. The Court considered that it would have been
illogical to regard the duty to distinguish oneself as applicable
to irregular armed forces but not to regular armed forces, as the
defendants had claimedd479
6. PROSECUTION- FAIR TRIAL RIGHTS

In respect of prosecution of prisoners of war, the law stipulates
basic fair trial rights which must not be derogated from. As noted
above, the legal status of a prisoner impacts on the legitimacy of
prosecuting that detainee for certain crimes related to the
conflict. Specifically, if detainees were formerly privileged
combatants (entitled to be treated as POWs); they may not be
prosecuted for acts of war, while those unprivileged combatants,
who fought absent the right to do so, may. All categories of
prisoners, however, may equally be prosecuted for the
Germany (ibid., § 16), Kenya (ibid., § 21), Madagascar (ibid., § 22),

Netherlands (ibid., § 23),
New Zealand (ibid., § 24), South Africa (ibid., § 25), Sweden (ibid., §
26), Switzerland (ibid.,
§ 27) and United Kingdom (ibid., § 29).
478
United Kingdom, Military Manual (1958), §§ 96 and 331
479
Israel, Military Court, Swarka case
commission of international crimes such as war crimes or crimes

against humanity.
GC III provides that any POW subject to judicial proceedings is

entitled to a fair trial. 480 So seriously are these rights taken that
‘willfully depriving a prisoner of war of the rights of fair and
regular trial prescribed in this convention’ is a grave breach,
which states parties are obliged to prosecute.481
7. ACCESS TO COUNSEL
The assistance of a defense counsel is a primary means of
ensuring the protection of the fundamental rights of people
suspected or accused of criminal offences, protected both under
IHL and IHRL.
IHL provides, explicitly and implicitly, for access to counsel for

persons suspected of having committed a criminal offence,
irrespective of their status as POWs, civilians or persons entitled
to the basic minima of human rights protection. The detailed
rights afforded to POWs under the GC III include the right to
legal representation.482 Likewise, among the due process rights
afforded to civilians protected by GC IV is the right ‘to be
assisted by a qualified advocate or counsel of their own choice,
480
Article 82-8 and 99-107 GC III
481
Article 130 GC IV
482
Article 84 GC III
who shall be able to visit them freely and shall enjoy the
necessary facilities for preparing the defense’.483
The minimum standard set out in Article 75(4) provides simply

for an accused: “...to be informed without delay of the particulars
of the offence alleged against him and shall afford the accused
before and during his trial all necessary rights and means of
defense”. The ICRC Commentary to AP I notes that ‘all
necessary means of defence’ must be interpreted to include the
right to communicate with a ‘qualified defence lawyer’. The
right to ‘all necessary rights and means of defence’ provision
explicitly applies ‘before and during…trial’ and should be
interpreted in the light of human rights law which, as explained
below, includes access to counsel from the early stages of
detention as one of the core protections against abuse and
arbitrariness.
8. RIGHTS REGARDING INTERROGATION

IHL provides special rules that govern, and strictly limit, the
information that POWs must provide to a Detaining Power.
According to GC III, POWs need only provide their name, date
of birth, rank and serial number. Furthermore, no ‘form of
coercion may be inflicted on prisoners of war to secure from
them information of any kind whatsoever’.484
483
Article 72 GC IV
484
Article 17 GC III
9. INDEFINITE DETENTION- REPATRATION

Another purported reason why affording POW status appears to
have been considered too significant relates to the rules on
repatriation. Article 118 of GC III provides that ‘POWs shall be
released and repatriated without delay after the cessation of
active hostilities’.
However, this right does not apply to persons who have been
charged with a criminal offence where proceedings are pending,
or where the detainee has been convicted and is serving a
sentence, in which case Article 119 GC III provides an explicit
exception to the duty to repatriate. There is therefore nothing to
prevent any state from conducting criminal proceedings against
persons responsible for criminal conduct.
The problem that the duty to repatriate was perceived to

represent may be encapsulated by the words of one commentator
who noted that ‘if the captives are POWs, they must eventually
be returned…the Taleban fighters may be too dangerous ever to
be released…which…commits the US to detaining them
indefinitely’.485Concern about affording POW status may reveal
an insidious assumption that if GC III does not apply there is no
legal framework to limit the power to detain indefinitely.
Whether or not GC III applies, it is certain that at a certain point

hostilities will cease and reasons ‘related to the conflict’ that
485
M. Dorf, ‘What is an Unlawful Combatant and Why Does it
Matter?’ Find Law Forum, 23 January 2002(at
http://www.cnn.com/2002/LAW/01/columns/fl.dorf.combatants.)
may justify detention under IHL, will also cease to exist. The
remaining question will then be whether there is any other basis
justifying detention, in accordance with IHL and IHRL. In most
cases, such justification arises where a person is suspected of,
and charged with, a criminal offence.
10. MILITIAS AND VOLUNEER CORPS:

Even though militias and volunteer corps act in less disciplinary
manner than regular members of armed forces IC tries to secure
their rights as P.O.Ws and provided some criteria that they must
fulfill in the memorandum.486 It was agreed that those militias
and volunteer Corps must have military organization to ensure
the fulfillment of those conditions.487 Members of resistance
movement, militias and volunteer corps are required to support
one of the parties and they must not be fighting independently.488
Members of volunteer corps and militias including those of
organized resistance movement, belonging to the party to the
armed conflict who are operating inside or outside their territory
even if their territory is occupied, they are to be considered as
combatants if they are operating under the command of superior
responsible authority and they have the distinctive emblem
visible from distance and they must carry arms openly and must
be operating in accordance with the laws and customs of war, if
these requirements are fulfilled then they must be given the
486
Memorandum by International Committee on 17 august 1944
487
Conference of Diplomatic Experts at Diplomatic Conference 1949
488
Etudes sur la III 1954 p. 31
status of P.O.W when they fall under the hands of enemy.489

Countries where militia or volunteer corps (so-called “irregular”
armed forces) constitute the army, or form part of it, they are
included under the denomination “army”.490
Public Committee against Torture in Israel case:
In its judgment in the Public Committee against Torture in Israel

case in 2006, Israel’s High Court of Justice provided the criteria
of P.O.Ws and people also including militia and volunteer
corps fulfilling the condition to be commanded by a person
responsible for his subordinates, to have a fixed distinctive
emblem recognizable at a distance, to carry arms openly; and to
conduct their operations in accordance with the laws and
customs of war. Court further stated that we need not discuss all
of them, as the terrorist organizations from the area, and their
members, do not fulfill the conditions for combatants. It will
suffice to say that they have no fixed emblem recognizable at a
distance, and they do not conduct their operations in accordance
with the laws and customs of war and are not to be given the
status of P.O.Ws on their capture.491
Hostage Trail Case:
In this case it was held that in case if a combatant violates the

rule of international law applicable during an armed conflict,
does not deprive such combatant from the status and right to be
489
Art. 4(2) of 3rd GC
490
491
Public Committee against Torture in Israel case
treated as P.O.W. However under Hague Regulations, this does

not apply to the militias and volunteer corps, unless they gave
the evidence in the field that they did indeed fulfill the conditions
provided by IHL and acted according to the customs and laws of
war in their operations.492
During World War 2, some states refused to recognize

belligerent combatant unit as P.O.Ws who allied to the
government or authority which these states did not recognized.
Important example to this is Italian troops who fought and
French followers of General de Gaulle who fought against the
German forces in southern Italy in 1943. When German forces
declared that they would give the General de Gaulle and his and
his troops the status of P.O.Ws but not to the Italian troops who
were fighting along them even after the recommendations by
ICRC.493 After that a special clause about the members of armed
forces claiming to be under an authority not recognized by
enemy and it was provided that they should be given the status
of P.O.Ws upon their upon falling into enemy hands.494
11. LEVEE EN MASSE:

Inhabitants of a non-occupied territory who are approached by
the enemy and to defend their territory against the enemy
invasion and they take arms to resist against the occupation of
their state territory, even if they are not part of regular armed
forces but due to the necessity of the situation they are also given
492
The Hostages Trail case
493
Report of ICRC on its activities during World War 2, pp. 519-520
and 532-533
494
Report on the Work of Conference of Government Experts, pp.
104,106,107
the status of combatants and P.O.Ws on falling under the hands

of enemy, but they are required to respect the laws and customs
of war and must be carrying arms openly as per rule 106 of
customary IHL.495 This is a long-standing rule of customary
international humanitarian law already recognized in the Lieber
Code496 and the Brussels Declaration497. It is codified in the
Hague Regulations,498 although of limited current application,
the levee en masse ´ is still repeated in many military manuals,
including very recent ones.499 In certain circumstances, persons
who participate in upspring to defend their territory must be
given the status of combatants as are militias and volunteer corps
and members of resistance movement and are to be given the
status of P.O.Ws.500 The requirement of carrying arms openly is
necessary for P.O.W status of levee en masse and those arms
must be visible to the enemy.501 They are not necessarily
required to wear uniforms.502
495
Art. 4 A(6) of GC 3
496
Art. 49 and 51 of Lieber Coder
497
Art. 10 of Brussels Declaration
498
499
See, e.g., the military manuals of Benin (cited in Vol. II, Ch. 1, §
714), Cameroon (ibid., § 715), Canada (ibid., § 764), Kenya (ibid., §
728), Madagascar (ibid., § 729), South Africa (ibid., § 731) and Togo
(ibid., § 734)
500
Switzerland’s ABC of IHL 2009
501
Jurg H. Schmid, p.139
502
Report of Rapporteur, p.401
Trail of Carl Bauer, Ernst Schrameck and Herbert Falten:
It is accepted nowadays that levee en masse can take place in any

part of the territory which is not occupied, even when the rest of
the country is occupied but not that part where levee en masse is
taking part, or in an area where occupying power has lost control
over that territory and is attempting to gain it back.503
12. PROTECTED PERSONS TAKING DIRECT PART

IN HOSTILITIES:
Civilians and non-combatants who take direct part in hostilities
lose their status as protected persons and acquire the status of
combatants. On falling into the hands of adverse party such
person is to be treated as P.O.W if he claims such himself or the
armed party notifies that he is entitled to such status and shall be
protected under the provisions of 3rd GC.504 In case of doubt
about his status that person must be treated as P.O.W until and
unless his status is confirmed by the tribunal competent to do so.
If the adverse party does not considers him as P.O.W and tries
to prosecute that person then he should be given right to prove
his status before the court by fair trail and is not to be prosecuted
for hostilities until its proved that he does not has the status and
rights of P.O.W.505
13. NON-COMBATANTS:
Some other persons who may not be given the status of
combatants but are still given the status of P.OWs on their
capture such persons include civilian members of military
503
Trail of Carl Bauer, Ernst Schrameck and Herbert Falten case p.18
504
Art. 45(1) of AP 1
505
Art. 45(2) of AP 1
aircraft, supply contractors, service units.506 The condition for

these person to have the ID card in order to acquire the status of
P.O.Ws is flexible and not an absolute one.507 Also crew of
civilian aircrafts or pilots or merchants marines or masters of the
crew, or services responsible for the welfare of armed forces.508
Prosecutor v Petkovic case:
In this case the defense argued that the Muslim men of the age
between 16 and 60 who were detained were reservists who were
part of the ABiH as non-combatant members of the forces, and
were afforded with the protection applicable to the P.O.W
because according to the national law applicable at that time the
non-combatants are to be given the status of P.O.Ws. the court
declared that even if they were reservists in the armed forces as
the non-combatants under national law, but they did not fit under
the definition of the members of armed forces under IHL until
they conduct any hostile act.509
14. CIVIL DEFENSE ORGANIZATION:

U.S handbook states that civil defense personnel and members
of armed forces who have acquired civil defense status are non-
combatants in addition to religious and medical personals510, But
if they commit any act outside their regular proper tasks which
is harmful to the enemy, or they are co-operating or operating
under the authority of military, or their acts provide benefit and
506
Art.4(4) of 3rd GC
507
Final record of the Diplomatic Conference of Geneva of 1949, Vol.
II-A p.417
508
Art. 4(5) of 3rd GC
509
Prosecutor v Petkovic case
510
U.S military naval handbook
service to any military personnel then they will lose their

protection under Art 65 of AP 1511, carrying of light individual
weapon by civil-defense forces for the purpose of protecting
civilians will not constitute as an act harmful to the enemy.512
But if any Military Personnel who is serving under civil defense
organization and fall under the hands of adverse party will be
considered as combatant.513
15. PERSONS NOT TO BE GIVEN THE STATUS OF

P.O.Ws
I. MERCENARIES:
Mercenaries are defines under art 47 of AP 1 as persons who is

specially recruited locally or abroad to fight in an armed conflict
although they do participate directly in hostilities but their
motivation to participate in a hostilities is based on the desire for
private gain such as payment of compensation or money for their
services in an armed conflict by the party who recruited them.
Mercenaries are neither national nor resident on territory of state
party to an armed conflict and is not the member of armed forces,
they may be sent by a state not party to an armed conflict. Such
persons are not considered as combatant under IHL and are not
entitled to the status of P.O.Ws after falling into the hands of
adverse party.514 But whether they are entitled to the protection
and rights of P.O.Ws is to some extent dependent on the inter-
511
Art. 65 of AP 1
512
Art. 65(3) of AP 1
513
Art. 67(2) of AP 1
514
Art. 47 of AP 1
state legislation such as in the US Air Force Commander’s

Handbook asserts that the United States has regarded
mercenaries as combatants entitled to prisoner-of-war status
upon capture. This shows that a State is free to grant such status.
The Handbook also states, however, that “the US government
has always vigorously protested against any attempt by other
nations to punish American citizens as mercenaries”.515 Security
Council in its resolution requested the states to refrain
themselves from recruiting mercenaries to overthrow a foreign
state’s government.516 It must be noted that AP 1 “permits”
parties to deny the status of combatants and P.O.Ws to
mercenaries and does not “obligates” parties to deny such
statuses.517
Boeremag case:
In this case the court declared that spies and mercenaries do not
have the status of a combatant, and therefore are not entitled to
the status of P.O.Ws when captured. This rule only applies when
they are being detained as spies and mercenaries. The accused is
fairly charged on the counts of terrorism and also has been
indicated on three counts of murder as he does not have right to
possess the status of P.O.Ws.518 Even if they are found to be
mercenaries by the competent court they must be given the
fundamental rights such as right to communication as these
515
U.S, Air Force Commander’s Handbook
516
S.C resolution 403, 16 April 1977
517
E. David, mercenaries et volontaires internationaux en droit des
gens, Brussels University, 1978, p.392
518
Boeremag case, South Africa
rights are guaranteed under Art. 75 of AP. Even if he is a national

of a third state by still he does not fight on behalf of his state but
on his own account.
II. SPIES:
A person who is part of armed forces and falls under the hands
of adverse party while conducting espionage shall not be given
the status and protection of P.O.Ws519. The definition includes
combatants who wear civilian attire or who wear the uniform of
the adversary but excludes combatants who are gathering
information while wearing their own uniform. This definition is
now codified in Additional Protocol I. It is set forth in numerous
military manuals520. If such person is conducting espionage in
the territory of adverse party and at the time he is caught, he is
wearing uniform of the armed force to which he belongs, in such
case he would be entitled to the status of P.O.W because he did
not failed to distinguish himself as combatant521. Member of
armed force who is resident to the territory occupied by adverse
party is collecting information valuable to the military purpose
is not to be considered as spy because he is in the territory to
which he belongs and is doing such act in manner inconformity
with IHL. Such person will not loss status of P.O.W after their
519
Art. 46(1) of AP 1
520
(ibid., §§ 150–151), Belgium (ibid., § 152), Cameroon (ibid., § 153),
Canada (ibid., § 154), Ecuador (ibid., § 155), France (ibid., § 156),
Germany (ibid., § 157), Kenya (ibid., § 158), Netherlands (ibid., §
159), New Zealand (ibid., § 160), Nigeria (ibid., § 161), South Africa
(ibid., § 162), Spain (ibid., § 163), Switzerland (ibid., § 164), United
Kingdom (ibid., § 165), United States (ibid., § 166) and Yugoslavia
(ibid., § 167)
521
Art. 46(2) of AP 1
capture unless at that time he is caught engaging in espionage522,

But if such person is not inhabitant of the occupied territory and
is caught while collecting information in that occupied territory
then such person will loser his status as P.O.W if he is captured
before he rejoins with armed forces to which he belongs.523 The
rule that combatants engaged in espionage have no right to
prisoner-of-war status and may be tried is a long-standing rule
of customary international law already recognized in the Lieber
Code, the Brussels Declaration and Hague Regulations.524 It is
also set forth in Additional Protocol I. Numerous military
manuals specify that combatants engaged in espionage have no
right to prisoner-of-war status and that they may be regarded as
spies. No official contrary practice was found525.
Ex Parte Quirin et al. case:
The court in its advisory opinion stated that the spy who secretly
and without uniform passes the military lines of a belligerent in
522
Art. 46(3) of AP 1
523
Art. 46(4) of AP 1
524
Art. 88 of Lieber Code, Art 20-21 of Brussels Declaration and Art
30-31 of Hague Regulations
525
(ibid., § 187), Belgium (ibid., § 188), Cameroon (ibid., §§ 189–190),
Canada (ibid., § 191), Croatia (ibid., §§ 192–193), Ecuador (ibid., §
194), France (ibid., §§ 195–196), Germany (ibid., § 197), Hungary
(ibid., § 198), Israel (ibid., § 199), Italy (ibid., § 200), Kenya (ibid., §
Zealand (ibid., § 204), Nigeria (ibid., §§ 205–206), South Africa (ibid.,
§ 207), Spain (ibid., § 208), Sweden (ibid., § 209), Switzerland (ibid., §
210), United Kingdom (ibid., §§ 211–212), United States (ibid., § 213)
and Yugoslavia (ibid., § 214)
time of war, seeking to gather military information and

communicate it to the enemy, or for purpose of waging war by
destruction of life and property are belligerents who are
generally deemed not to be entitled to the status and protection
granted to the P.O.Ws and are subject to trail and punishment by
military tribunals.526
Osman v Prosecutor:
In this case the court held that if a regular combatant fails to

comply with the conditions provided by IHL, he may in certain
cases become unprivileged belligerent. This means that he will
of be entitled to the status of P.O.W upon his capture. Thus, the
regular members of armed forces who are caught as spies are not
entitled to be treated as P.O.Ws.527
16. LOSING OF RIGHT TO BE TREATED AS

P.O.Ws:
According to the principle of distinction combatants must follow

their obligation to distinguish themselves from the civilians and
non-combatants for the purpose of protecting those protected
persons when they are engaging in the military operations and
participating in the hostilities in direct manner. For such purpose
of distinction, they must carry arms openly and must me wearing
the distinct symbol or uniform, so their emblem become visible
526
Ex Parte Qurin et al. case
527
Osman v prosecutor, Malaysia
from a far distance to the adverse party528. If they fail to

distinguish themselves from the protected persons, they will lose
their right to be treated as the P.O.W but should be treated almost
equivalent to the P.O.Ws, but they are not immune from being
prosecuted through fair-trail by a competent court.529
Kassem case:
In the Kassem case the Israel military court held that defendants
fulfilled the requirement of wearing the distinct uniform as their
uniform was different than regular civilians but the failed to
show that they were carrying arms openly as the weapons were
hidden until they were fired against Israeli soldiers so carrying
arms openly is also important for combatants and if a person
does not fulfils any one requirement he must not be given the
P.O.W status as well.530
Swarka case 1974:
In Swarka case in 1974, Israeli Military Court found that some

members of Egyptian armed forces attacked their civilians in
civilian attire and declared that they are not to be given the status
of P.O.Ws.531 Combatants are obligated to wear the uniformed
signs that are visible from distance532.
528
Art. 44(3) of AP 1
529
Art. 44(4) of AP 1
530
531
Israel military court Swarka case 1974
532
Germany military manual
CONCLUSION
Throughout the years, the International Committee has

labored unremittingly for the greater protection in
International Law of the individual against the hardships of
war; it successively elaborated the humanitarian Conventions
and adapted them to current needs or instituted new ones. In
the period between the two World Wars, the Committee's
main achievement lay in the establishment of a number of
draft Conventions, chief among which was the Convention on
the Treatment of Prisoners of War; this was signed in the
summer of 1929. There has been various transformation of
this convention which has culminated into what we have today
as GENEVA CONVENTION RELATIVE TO THE
TREATMENT OF PRISONERS OF WAR OF AUGUST
12, 1949.
It is believed that if the provisions of this convention are

strictly adhered to by all nations, prisoners of war would be
home away from home in the hands of Detaining Power.
UNIT: VII
MEANS AND METHODS OF WARFARE
The tactics or strategy used in hostilities to defeat the enemy by

using available information on him together with weapons,
movement and surprise. International law has sanctioned the
following principles regarding means and methods of warfare:
i. the only legitimate object of war is to weaken the

enemy’s military forces, for which purpose it is
sufficient to disable the greatest possible number of
enemy combatants.
ii. the right to choose methods and means of warfare is not

unlimited.
iii. it is prohibited to employ methods (and means) of
warfare of a nature to cause superfluous injury or
unnecessary suffering.
iv. in the study, development, acquisition or adoption of
new means or methods of warfare it must be determined
whether their employment is not prohibited in some or
all circumstances.
➢ Defining and regulating methods of warfare
i. methods of warfare
The notion of “methods of warfare” is mentioned several times
in Additional Protocol I to the Geneva Conventions. 533It is
usually employed together with its twin notion “means of
warfare”. In Additional Protocol II dealing with non-
international armed conflicts, where States party were hesitant
to use the term “warfare”,534 and on one occasion in Additional
533
The recent IHL provisions using the term methods of warfare:
Title of Part III, Section I of AP I; art. 35(1-2-3) AP I (Basic Rules); art.
36 AP I (New Weapons); art. 51(4b, 4c and 5a) AP I (indiscriminate
attacks); art. 54(1) AP I (starvation); art. 55(1) AP I (protection of the
natural environment); art. 57(2aii) AP I (principle of precautions).
534
The ICRC Commentary on Article 14 of the 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 (hereafter AP II) specifies that the Conference “considered
inappropriate to refer to warfare in an instrument concerning non-
international armed conflicts”. See Sandoz et al. (eds.), Commentary
on the Additional Protocols of 8 June 1977 to the Geneva
Conventions of 12 August 1949 (Geneva: ICRC, 1987), para. 4799.
Protocol I, 535 treaty law also refers to “methods of combat”

instead. Generally, however, States preferred the term “warfare”
to that of “combat”, the latter having been proposed in the
original draft text prepared by the ICRC, because they felt
“combat” might be construed more narrowly than “warfare”.536
For the purposes of the present analysis, both terms will be used
synonymously. In any event, neither the concept of “methods of
warfare” nor that of “methods of combat” has been defined in
treaty law and there was no attempt to do so in the discussions
preceding the adoption of the Additional Protocols to the Geneva
Conventions. 537The Commentaries to the Additional Protocols
simply state that while the term “means” of warfare refers to
weapons, the term “methods” of warfare generally refersto the
way in which weapons are used.538This distinction between
“means” and “methods” of warfare is important because any
weapon (means), i.e. even lawful ones, can be used in an
unlawful manner (method), whereas the use of weapons that
have been prohibited because of their inherent characteristics is
unlawful regardless of the manner in which they are being
employed.539Nevertheless, the interpretation of the term
(Hereafter: ICRC Commentary 1987). This point raises the question

whether methods of warfare are supposed to be more restrictive in
non-international armed conflicts.
535
See Art. 51, para. 4 (b) and (c) AP I using the terms “methods of
combat” as an element of the definition of “indiscriminate attack”
536
ICRC Commentary 1987 on art. 35 AP I, para. 1401.
537
ICRC Commentary 1987 on art. 14 AP II, para. 4799
538
ICRC Commentary 1987 on art. 35 AP I, para. 1402; on art. 51 AP I,
para. 1957.
539
N. Melzer, International Humanitarian Law – a Comprehensive
Introduction (Geneva: ICRC, 2016), p. 104
“methods of warfare” as proposed in the Commentaries is too

restrictive given that even methods not necessarily involving the
use of a weapon, such as starvation,540 improper use of
emblems,541 perfidy542 or denial of quarter 543are either expressly
described as “methods of warfare” or as “method of combat”, or
are systematically included in Part III, Section I of Additional
Protocol I on “Methods and Means of Warfare” (Arts 35-42
API).544
It is here submitted that the notion of methods of warfare should

be understood more accurately as referring to any particular
manner of using weapons or of otherwise conducting hostilities,
irrespective of permissibility or appropriateness, and ranging
from the use of emblems, flags, uniforms and weapons or other
equipment to the choice of targets for attack.
ii. Regulating methods of warfare

Methods of warfare are regulated, on the one hand, by general
principles applicable to all military operations and, on the other
hand, by special provisions governing a number of specific
methods of warfare. This section is focusing on general
540
Art. 54 (1) AP I, Art. 14 AP II
541
Arts. 38 and 39 AP I.
542
Art. 37 AP I.
543
Art. 40 AP I.
544
Not very helpful in this respect is the rather loose use of the term
“weapon” in the ICRC Commentary 1987, when they state that:
“Starvation is referred to here as a method of warfare, i.e., a weapon
to annihilate or weaken the population” (para. 2090) or “Starvation
is prohibited as a method of combat, i.e., when it is used as a
weapon to destroy the civilian population” (para. 4799). (Emphasis
added).
principles, more particularly on the principle of distinction and

the prohibition of superfluous injury or unnecessary suffering.
A) distinction and proportionality
The principle (or “basic rule”) of distinction has attained

undisputed customary status in both international and non-
international armed conflicts.545It prohibits not only direct
attacks against civilians but also indiscriminate attacks as a
method of warfare. While the prohibition of direct attacks
against civilians is straightforward and identical in both
international and non international armed conflicts, the concept
of indiscriminate attacks may require some further explanation.
In essence, indiscriminate attacks are those, which are of a nature
to strike military objectives and civilians and civilian objects
without distinction, either because they are not or cannot be
directed at a specific military objective, or because their effects
cannot be limited as required by IHL.546 Particularly devastating
examples of indiscriminate attacks were the so-called “carpet
bombing” campaigns of World War II, in which entire areas
containing both military objectives and civilians and civilian
objects were treated as a single military objective and attacked
without distinction.547 Another example of indiscriminate
attacks are those which may be expected to cause incidental
harm to civilians or civilian objects that would be excessive in
relation to the concrete and direct military advantage anticipated
and, therefore, violate the IHL principle of proportionality.548
545
AP I, Art. 48; ICRC Customary IHL Study, Rule 1
546
AP I, Art. 51 (4) and (5); ICRC Customary IHL Study, Rules 11-13.
547
Melzer, above n. 16, at 86.
548
AP I, Art. 51 (5)(b).
While the principle of proportionality is extremely important, its

operationalization gives rise to difficult questions. When can
incidental civilian damage be considered as excessive? How
does the value of a human life compare to that of a military
objective? Should the safety of a belligerent’s own forces be
taken into account as part of the military advantage assessment?
Should the lives of enemy combatants that are hors de combat
be taken into account although the rule in Additional Protocol I
refers to civilians only?
B) Unnecessary sufferings
The second general principle restricting methods of warfare is

the prohibition of superfluous injury or unnecessary suffering. It
is one of the rare principles, if not the only, that protects
combatants and other legitimate targets during the conduct of
hostilities. Surprisingly, the prohibition of methods of warfare
that cause superfluous injury or unnecessary suffering was first
introduced in Additional Protocol I, whereas the 1868 Saint
Petersburg Declaration and 1907 Hague Regulations only deal
with means – but not with methods – of warfare causing
superfluous injury or unnecessary suffering.549 The prohibition
now belongs to customary law governing both international and
noninternational armed conflicts and the use of such methods is
considered as amounting to a war crime in the Rome Statute550 .
The key issue is to define the meaning of “superfluous” or
“unnecessary”.551 In 1997, the Health Operations Division of the
549
ICRC Customary IHL Study, Commentary on Rule 70.
550
ICC Statute, Art. 8(2)(b)(xx).
551
The St Petersburg Declaration also mentions arms rendering
death inevitable, although this wording has unfortunately not been
ICRC launched its SIrUS Project attempting to define what

“unnecessary suffering” means from a medical perspective.552
According to the resulting study, a specific means or method of
warfare should be considered as inflicting superfluous injury or
unnecessary suffering if it:
a) would cause a specific disease, a specific abnormal

physiological state, a specific abnormal psychological state, a
specific and permanent disability or specific disfigurement, or
b) would imply a field mortality of more than 25% or hospital

mortality of more than 5% or c) would inflict grade 3 wounds as
measured by the Red Cross wound classification or d) would
cause effects for which there is no well-recognized and proven
treatment
Although treaty law does not define the meaning of the terms
“unnecessary” and “superfluous”, it can safely be said that the
principle requires a balance between considerations of military
necessity and of humanity.553 As a minimum, the rule prohibits
the infliction of suffering that has no military purpose.554 The ICJ
in its Advisory Opinion on nuclear weapons considered that
inflicting superfluous injury or unnecessary suffering means to
cause combatants “harm greater than that unavoidable to achieve
adopted by other IHL treaties. It is submitted that methods of

warfare rendering death inevitable are equally prohibited
552
R. M. Coupland (ed.), The SIrUS Project, Towards a Determination
of Which Weapons Cause “Superfluous Injury or Unnecessary
Suffering” (Geneva: ICRC, 1997). Available at:
www.loc.gov/rr/frd/Military_Law/pdf/SIrUSproject.pdf
553
Melzer, above n. 16, at 110
554
ICRC Customary IHL Study, commentary on Rule 70.
legitimate military objectives”.555 In this conception of the

principle, it is thus not so much the degree of the inflicted
suffering that makes a means or method of warfare unlawful, but
that the inflicted suffering exceeds the harm that is unavoidable,
i.e. necessary, to achieve a legitimate military objective.556 When
making this assessment, the availability of alternative – less
harmful – means and methods of warfare must therefore be taken
into account.557
Based on the prohibition of superfluous injury or unnecessary

suffering certain weapons(i.e. means of warfare) have been
prohibited, such as blinding laser weapons, expanding bullets
555
ICJ, Advisory Opinion on the Legality of the Threat or Use of
Nuclear Weapons, 8 July 1996, para. 78.
556
Contra: In the context of the Nuclear Weapons Advisory Opinion
requested by the WHO before the ICJ, see the Letter dated 19 June
1995 from the Honorary Consul of Solomon Islands in London,
together with written comments of the Government of Solomon
Islands, para. 4.6: “The use of nuclear weapons necessarily causes
“superfluous injury” to its victims. (…) Proponents of the legality of
the use of nuclear weapons (…) suggest that there is no unnecessary
suffering where there exists a reasonable link between the military
advantage gained and the damage caused to the enemy. (See e.g.
United Kingdom (…), Netherlands (…), United States (…)). This
approach disregards fundamental principles of humanitarian law. (…)
The concept of “unnecessary suffering” does not depend on what a
particular army judges to be good or bad in terms of military
advantage, but on an objective determination of the victims’ injury.
It is their suffering which is at issue, not the interest of obtaining
military advantage.
557
ICRC Customary IHL Study, commentary on Rule 70 and related
practice. See, in particular, US, Air Force Pamphlet (1976), para. 6-3b
(1) and (2). See also UK, written statement submitted to the ICJ,
Nuclear Weapons advisory opinion, 16 June 1995, p. 50, para. 3.64.
and weapons that injure by means of non-detectable

fragments.558 Fewer examples come to mind when it comes to
methods of warfare that cause superfluous injury or unnecessary
suffering.559 The denial of quarter is one of the few methods of
warfare that indisputably inflicts unnecessary suffering because
it excludes the possibility of weakening enemy forces by merely
capturing or injuring - rather than killing - its combatants.
Arguably, the same applies to scores of Iraqi soldiers needlessly
being buried alive in their trenches by US forces in the early
hours of the allied ground attack that ended the First Persian Gulf
war.560Although the principle of distinction and the prohibition
of superfluous injury/unnecessary suffering are well-
established, it remains controversial whether or not they can
directly prohibit specific means and methods of warfare without
a more specific treaty provision or customary rule to that
effect.561The predominant and more convincing view, which was
558
Melzer, above n. 16, at 110. For additional examples, see ICRC
Customary IHL Study, commentary on Rule 70
559
See ICRC Customary IHL Study, commentary on Rule 70, which
states that “States articulating [the prohibition of methods of
warfare that cause superfluous injury or unnecessary suffering] do
not give any examples of methods of warfare that would be
prohibited by virtue of this rule.”
560
R. Kolb, Ius in bello: Le droit international des conflits armés,
Précis (Bâle, Helbing & Lichtenhahn, 2003), at 139, para. 311. For a
newspaper article on this attack, see Eric Schmitt, “U.S. Army Burried
Iraki Soldiers Alive in Gulf War”, The New York Times, 15 September
1991.
561
For instance, France and Russia held in the context of the Nuclear
Weapons Advisory Opinion before the ICJ that a weapon can be
prohibited by virtue of one or the other of the said cardinal
principles only if States prohibit the weapon by a treaty. See: Russian
also expressed by the ICJ in its Nuclear Weapons Opinion,562is

that the prohibitions of indiscriminate attacks and of means and
methods causing superfluous injury or unnecessary suffering
constitute generic and legally binding standards by which all
means and methods of warfare have to be measured, even in the
absence of specific treaty provisions or recognized customary
rules relevant to the particular means or method in question.563
In essence, therefore, the fact that a specific method of warfare
is not prohibited or restricted by a specific treaty provision does
not necessarily mean that this method is lawful. This conclusion
receives further support in the longstanding customary principle
expressed in the Martens Clause, according to which, where
treaty law fails to provide a specific rule, “both civilians and
combatants remain under the protection and authority of the
principles of international law derived from established custom,
from the principles of humanity and from the dictates of public
conscience”.564 A final general issue is whether there are any
Federation, written statement submitted to the ICJ, Nuclear

Weapons case, 19 June 1995, p. 12; French Republic, written
statement submitted to the ICJ, Nuclear Weapons case, 19 June
1995, p. 42
562
ICJ, Advisory Opinion on the Legality of the Threat or Use of
Nuclear Weapons, 8 July 1996, para. 95.
563
Melzer, above n. 16, at 110-111; Kolb, above n. 43, at 138-139,
para. 308; Sassòli, Bouvier, Quintin, above n. 22, at 33-34; ICRC
Customary IHL Study, commentary on Rules 70 and 71.
564
Art. 1(2) of AP I. See also the preamble of AP II for a shorter
version of the Martens clause and the preamble of the 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, Geneva, 10 October 1980. For previous
versions of the Martens clause, see: Convention (II) with Respect to
differences in the regulation of methods of warfare depending on

whether the conflict is of international or non-international
character. There are only few treaty provisions applicable in
non-international armed conflicts that expressly address
methods of warfare. While common article 3 focuses on the
protection of persons hors de combat, it allows more specific
conclusions as to the permissibility of methods of warfare, albeit
only by implication. Additional Protocol II merely recognizes
the duty to protect the civilian population against the dangers
arising from military operations and prohibits a number of
specifically mentioned methods of warfare such as starvation565
, the denial of quarter566, the recruitment of children into armed
forces567 , as well as deportations568 . However, neither treaty
contains a general prohibition on means and methods of warfare
that are of a nature to cause superfluous injury or unnecessary
suffering.
The Appeals Chamber of the ICTY asserted in the Tadic case

that “elementary considerations of humanity and common sense
make it preposterous that the use by States of weapons
prohibited in armed conflicts between themselves be allowed
when States try to put down rebellion by their own nationals on
their own territory. What is inhumane, and consequently
the Laws and Customs of War on Land, The Hague, 29 July 1899,
preamble (§9); Convention (IV) respecting the Laws and Customs of
War on Land, The Hague, 18 October 1907, preamble (§8); Art
63/62/142/158 of the 1949 Geneva Conventions.
565
Art. 14 AP II.
566
Art. 4§1 AP II.
567
Art. 4§3 c) AP II.
568
Art. 17 AP II.
proscribed, in international wars cannot but be inhumane and

inadmissible in civil strife”.569
➢ Methods of warfare that concern primarily the

protection of combatants
This section deals with prohibited/restricted methods of warfare
concerning primarily the protection of combatants; and more
specifically with
1) the protection of persons hors de combat.
2) the prohibition of denial of quarter and
3) the restriction of deception.
Unless specified otherwise, the arguments made, and the

conclusions reached equally concern both international and non-
international armed conflicts. In the latter context, therefore, the
term “combatant” will be used in its functional sense and thus as
covering not only members of the armed forces of a belligerent
State, but also members of organized non state armed groups
with a continuous combat function.570
1. Protection of persons hors de combat

the protection of persons hors de combat against direct attack
and abuse of power is a well-established rule of customary and
569
ICTY, The Prosecutor v. Dusko Tadić a/k/a “Dule”, Decision on the
Defence Motion for interlocutory appeal on jurisdiction, Appeals
Chamber, 2 October 1995, Case No. IT-94-1-AR72, para. 119.
570
N. Melzer, Interpretive Guidance on the Notion of Direct
Participation in Hostilities under International Humanitarian Law
(Geneva: ICRC, 2009), at 27. (Hereafter: ICRC DPH Guidance)
treaty IHL.571 The prohibition of direct attack against those hors

de combat is explicitly recognized in the 1907 Hague
Regulations and in Additional Protocol I.572 Regarding non-
international armed conflicts, it is expressly recognized in
Article 3 common to the Geneva Conventions, which protects
those taking no active part in the hostilities, including those
placed “hors de combat” against violence to life and person and
other forms of abuse. It has also been codified in article 4 of
Additional Protocol II, albeit in slightly different words.573 The
prohibition is considered to constitute a customary rule
applicable in both international and non international armed
conflicts.574 Willfully making a person the object of attack in the
knowledge that he or she is hors de combat, thus causing his or
her death or serious injury to body or health, is a war crime.575
A person is hors de combat if he or she is in the power of an

adverse Party, clearly expresses an intention to surrender or is
incapable of defending him- or herself because of
571
Instructions for the Government of Armies of the United States in
the Field, 24 April 1863, Article 71 (hereafter: Lieber Code); Project
of an International Declaration concerning the Laws and Customs of
War, Brussels, 27 August 1874, Article 13(c) (Hereafter: Brussels
Declaration); The Laws of War on Land. Oxford, 9 September 1880
(hereafter Oxford Manual), Article 9(b).
572
1907 Hague Regulations, Art. 23(c); AP I, Article 41(1)
573
See in this sense ICRC Customary IHL Study, commentary on Rule
47
574
ICRC Customary IHL Study, Rule 47
575
See Article 85(3)(e) of AP I. See also ICC Statute, Art. 8(2)(b)(vi).
These provisions deal with international armed conflicts. It is
submitted that it should also be considered a crime in non-
international armed conflicts.
unconsciousness, shipwreck, wounds or sickness, and, in all

those cases, abstains from any hostile act and does not attempt
to escape.576
Persons can express their intention to surrender in various ways,

depending on the circumstances. In land warfare, persons would
commonly surrender by laying down their arms and by raising
their hands or white flag.577 Regarding persons parachuting from
aircraft in distress, attacks are prohibited for the duration of their
descent.578 Upon reaching the ground in territory controlled by
an adverse Party, they have to be given an opportunity to
surrender before being attacked, unless it is apparent that they
are engaging in a hostile act. 579This protection does not apply to
airborne troops whose descent constitutes part of their hostile
operations.580
I. Prohibition of the denial of quarter

Another longstanding rule that is related to the protection of
persons hors de combat is the prohibition of denial of
quarter. 581 It is explicitly recognized in the 1907 Hague
Regulations and in Additional Protocol I (international
armed conflicts)582 and in Article 4 of Additional Protocol II
576
AP I, Art. 41 (1) and (2); ICRC Customary IHL Study, Rule 47
577
ICRC Commentary 1987, paras 1618-1619. See also ICRC
Customary IHL Study, commentary on Rule 47
578
AP I, Art. 42 (1); ICRC Customary IHL Study, Rule 48.
579
AP I, Art. 42 (2).
580
AP I, Art. 42 (3).
581
4 Lieber Code, Art. 60; Brussels Declaration, Art. 13(d); Oxford
Manual, Art. 9(b)
582
1907 Hague Regulations, Art. 23 (d); AP I, Art. 40.
(non-international armed conflicts). 583 Moreover, this rule

is considered customary law584 and its violation amounts to
a war crime585 in both international and non-international
armed conflicts. The ratio Legis for the prohibition of denial
of quarter is comparable to that of the hors de combat
protection, albeit without any aspects of the principle of
distinction. As stated above, it is a derivate of the prohibition
of superfluous injury or unnecessary suffering and a codified
expression of the maxim that the purpose of military
hostilities in warfare is not to kill combatants, but to defeat
the enemy, even if this requires the killing of combatants.586
The prohibition of denial of quarter, too, balances the
potential military advantage of leaving no survivors against
the requirements of humanity and, deciding in favor of the
latter, expresses generic considerations not only of military
necessity but also of proportionality. According to the rule,
“(i)t is prohibited to order that there shall be no survivors, to
threaten an adversary therewith or to conduct hostilities on
this basis”.587 The prohibition of denial of quarter also makes
it illegal to deliberately refuse or render impossible an
enemy’s surrender or to put to death those who are hors de
combat. Given that persons hors de combat are already
583
AP II, Art. 4(1).
584
ICRC Customary IHL Study, Rule 46.
585
ICC Statute, Art. 8(2)(b)(xii) (for international armed conflicts) and
ICC Statute, Art. 8(2)(e)(x) (for noninternational armed conflicts)
586
See also the St. Petersburg Declaration, which prohibited the use
of explosive projectiles, which “uselessly aggravate the sufferings of
disabled men, or render their death inevitable”
587
AP I, Art. 40. See also 1907 Hague Regulations, Art. 23 (d), and
ICRC Customary IHL Study, Rule 46
protected, the added value of the prohibition of denial of

quarter lies in:
1) the prohibition of threatening or ordering that there shall

be no survivors, and
2) the restraints it imposes on the conduct of hostilities,

namely in the prohibition of conducting hostilities on the
basis that there shall be no survivors.588 The prohibition of
threatening or ordering that there shall be no survivors
concerns primarily military commanders, given that they are
in a position to issue such threats or orders. 589 It is rare in
international law that the mere threat of committing a
violation is prohibited in itself, the other two examples being
the prohibition of “the threat or use of force in international
relations”590
➢ Deception
I. The prohibition of perfidy or treachery
Already the Hague Regulations of 1907 prohibited to “kill or
wound treacherously individuals belonging to the hostile nation
or army”.591 Additional Protocol I broadens this rule by
prohibiting the use of perfidy to kill, injure or capture an
588
2 ICRC Commentary 1987, para. 1598. Article 23(c) of the 1907
Hague Regulations prohibits the killing and wounding of a combatant
hors de combat separately from the denial of quarter.
589
ICRC Customary IHL Study, Commentary on Rule 46.
590
Charter of the United Nations, San Francisco, 26 June 1945, art.
2(4).
591
1907 Hague Regulations, Art. 23(b). For earlier prohibitions, see :
Lieber Code, Art. 101; Brussels Declaration, Art. 13(b); Oxford
Manual, Art. 8(b).
adversary.592Although Art. 3 common to the Geneva

Conventions and Additional Protocol II do not contain a similar
provision, the prohibition of perfidious killing, injury and
capture is considered customary IHL in both international and
non international armed conflicts.593 Under the ICC Statute,
“killing or wounding treacherously” an adversary – but not
perfidious capture – constitutes a war crime in both international
and non international armed conflicts. 594 According to the rule,
perfidy denotes “acts inviting the confidence of an adversary to
lead him to believe that he is entitled to, or is obliged to accord,
protection under the rules of international law applicable in
armed conflict, with intent to betray that confidence”.595
Relevant examples would include the feigning: (a) of surrender,
(b) of an intent to negotiate under a flag of truce, (c) of
incapacitation by wounds or sickness, (d) of civilian, non-
combatant status, and (e) of protected status by the use of the
signs, emblems or uniforms of the United Nations, of neutral or
other non belligerent States or of the protective emblem of the
red cross, red crescent or red crystal. It should be noted that IHL
does not prohibit perfidy per se, but only to kill, injure or capture
an adversary by resort to perfidy. The resort to perfidy for other
purposes, such as intelligence gathering or sabotage, are not
covered by the prohibition of perfidy but may be subject to other
restrictions, such as the prohibition on misuse of emblems, signs
and uniforms. Moreover, the prohibition of perfidy does not
592
AP I, art. 37
593
ICRC Customary IHL Study, Rule 65.
594
ICC Statute, Art. 8(2)(b)(xi) (for international armed conflicts); ICC
Statute, Art. 8(2)(e)(ix) (for non-international armed conflicts). See
also: API, art. 85(3)(f).
595
AP I, art. 37
prohibit ruses of war, i.e. “acts which are intended to mislead an

adversary or to induce him to act recklessly but which infringe
no rule of international law applicable in armed conflict and
which are not perfidious because they do not invite the
confidence of an adversary with respect to protection under that
law”.596 Examples of permissible ruses include the use of
camouflage, decoys, mock operations and misinformation, 597
Mere intelligence gathering by undercover units disguised as
civilians also does not amount to prohibited perfidy.598 If
captured however, such personnel would lose their prisoner of
war status and, therefore, could be prosecuted as spies under the
domestic legislation of the capturing State. Indeed, any
uncertainty on the part of belligerents as to the reliability and
truthfulness of behaviour or circumstances affording civilians or
opposing combatants’ protection under IHL would seriously
jeopardize their respect for the principle of distinction.
2. MISUSE OF EMBLEMS, SIGNS AND UNIFORMS

IHL not only prohibits the use of perfidy to kill, injure or capture
an adversary, but also more generally the misuse of recognized
distinctive emblems and emblems of nationality. In particular, it
is prohibited to make improper use of emblems, signs or signals
provided for in IHL, such as the distinctive emblem of the red
cross, red crescent or red crystal, or to deliberately misuse other
internationally recognized protective emblems, signs or signals,
including the flag of truce, the protective emblem of cultural
property (downward pointed square blue shield on white
ground), the distinctive signs of civil defence (orange triangle on
596
API, art. 37.
597
AP I, art. 37. See also ICRC Customary IHL Study, rule 57
598
Melzer, above n. 16, at 109.
blue ground) and of installations containing dangerous forces

(three orange circles), and the distinctive emblem of the United
Nations.599 IHL also prohibits the use in an armed conflict of the
flags or military emblems, insignia or uniforms of neutral or non-
belligerent States, whereas those of adverse parties can be used
as a ruse of war, except during direct hostile contact with the
enemy, namely while engaging in attacks or in order to shield,
favour, protect or impede military operations.600 Under the ICC
Statute, “Making improper use of a flag of truce, of the flag or
of the military insignia and uniform of the enemy or of the
United Nations, as well as of the distinctive emblems of the
Geneva Conventions” amounts to a war crime in international
armed conflicts when it results in death or serious personal
injury.601A well-known example of a violation of this prohibition
was the use of the Red Cross emblem by a Colombian military
intelligence team in a hostage rescue mission that freed 15
hostages from the hands of the Revolutionary Armed Forces of
Colombia (FARC) rebels in July 2008.602 This misuse was
subsequently condemned by the ICRC.
599
AP I, art. 38; AP II, art. 12; ICRC Customary IHL Study, rules 59-61.
600
AP I, Art. 39; ICRC Customary IHL Study, rules 62 and 63
601
ICC Statute, art. 8(2)(b)(vii).
602
K. Penhaul, “Uribe: Betancourt rescuers used Red Cross”, CNN, 16
July 2008, available at
http://edition.cnn.com/2008/WORLD/americas/07/16/colombia.cro
ss/index.html]
➢ Methods of warfare primarily affecting the civilian

population and civilian objects
I. Starvation
Modern IHL prohibits the starvation of civilians as a method of
warfare, i.e. “deliberately depriving [them] of food”. Derived
from the principle of distinction, this rule appears for the first
time in both Additional Protocols of 1977 603 and, today, is
considered customary law in both international and non-
international armed conflicts.604 The Rome Statute provides that
“intentionally using starvation of civilians as a method of
warfare” is a war crime in international armed conflicts.605 Under
domestic criminal law, individuals have also been convicted for
the crime of starvation in the context of non-international armed
conflicts.606A corollary to the prohibition of starvation of
civilians IHL also prohibits to attack, destroy, remove or render
useless objects indispensable to the survival of the civilian
population (e.g. foodstuffs, agricultural areas, crops, livestock,
drinking water and irrigation systems) for the specific purpose
of denying them for their sustenance value to the civilian
population or to the adverse party, whether in order to starve out
civilians, to cause them to move away, or for any other motive.607
603
AP I, art. 54 (1); APII, art. 14.
604
ICRC Customary IHL Study, rule 53.
605
ICC Statute, art. 8(2)(b)(xxv).
606
See, e.g., Croatia, District Court of Zadar, Perišić and Others case,
Judgment, 24 April 1997.
607
AP I, art. 54 (2); ICRC Customary IHL Study, Rule 54.
II. Reprisals
Belligerent reprisals are forcible countermeasures. They cover
any “action that would otherwise be unlawful but that in
exceptional cases is considered lawful under international law
when used as an enforcement measure in reaction to unlawful
acts of an adversary”.608 Traditionally, reprisals were regarded
as a method of enforcement of IHL.609 Modern IHL prohibits
many types of reprisals without however outlawing them
altogether. More specifically, the 1949 Geneva Conventions
prohibit reprisals against protected persons and objects in the
power of the enemy. Thus, reprisals are prohibited against the
wounded, sick and shipwrecked, prisoners of war and civilians,
610
as well as against the property of civilians in the hands of a
an adverse party to the conflict or an occupying power611 and
against medical objects.612 Additional Protocol I further
prohibits attacks in reprisals directed against civilians613 civilian
objects614, historic monuments, works of art or places of worship
that constitute the cultural or spiritual heritage of peoples615,
against objects indispensable to the survival of the civilian
608
ICRC Customary IHL Study, Commentary on rule 145.
609
See, e.g., E. de Vattel, The Law of Nations, or the Principles of
Natural Law, 1797, para. 342. Reproduction available at: http://lf-
oll.s3.amazonaws.com/titles/2246/Vattel_1519_LFeBk.pdf
610
1 GC I, art. 46; GC II, art. 47; GC III, art. 13§3; Convention (IV)
relative to the Protection of Civilian Persons in Time of War, Geneva,
12 August 1949, art. 33. (Hereafter: GC IV).
611
GC IV, art. 33.
612
GC I, art. 46; GC II, art. 47.
613
AP I, art. 51(6)
614
AP I, art. 52
615
AP I, art. 53
population616 , against the natural environment617 and against

works and installations containing dangerous forces, namely
dams, dykes and nuclear electrical generating stations618.
Cultural property “of great importance to the cultural heritage of
a people” is also protected against “any act directed by way of
reprisals” in the Hague Convention for the Protection of Cultural
Property.619 As these provisions make clear, reprisals against
military objectives (be they persons or objects) are not
prohibited. To be lawful, however, they must fulfil a number of
conditions:620
1) respond to a prior serious IHL violation (no

“anticipatory/preventive” reprisal).
2) aim to induce the adversary to stop such violations (no

punishment or revenge).
3) be carried out as a last resort, when no more lawful measures

are available and after prior warning has been given.
4) be proportionate to the prior violation.
616
AP I, art. 54.
617
AP I, art. 55
618
AP I, art. 56.
619
Convention for the Protection of Cultural Property in the Event of
Armed Conflict, The Hague, 14 May 1954, art. 4(4)
620
ICRC Customary IHL Study, commentary on rule 145 (and further
references therein). For relevant jurisprudence, see, e.g.: Special
Arbitral Tribunal, Naulilaa case, Decision, 31 July 1928, pp. 1026-
1027; ICJ, Advisory Opinion on the Legality of the Threat or Use of
Nuclear Weapons, 8 July 1996, para. 46; ICTY, Kupreškić case,
Judgment, 14 January 2000, para. 535; ICTY, Martić case, Trial
Judgment, 2007, paras 465-467.
5) be authorized at the highest political or military level.
6) be terminated as soon as the adversary complies with the law.
The rule prohibiting reprisals against civilians in Additional

Protocol I was regarded as a novelty when it was adopted and
several States made reservations to it.621 State practice has
substantially evolved since then,622 although some rare States
maintain that reprisals against civilians in the conduct of
hostilities might be lawful in exceptional
circumstances.623According to the ICRC Customary IHL Study,
621
4 ICRC Customary IHL Study, Commentary on rule 146. For
reservations, see e.g. United Kingdom, Reservations and
Declarations made upon ratification of the 1977 Additional Protocol
I, 28 January 1998, para. (m). See also the more ambiguous
reservations/declarations of Egypt (9 October 1992, para. 3); France
(11 April 2001, para. 11); Germany (26 May 1997, p. 167, para. 137)
and Italy (27 February 1986, para. 10). The text of the reservations
are available at:
https://ihldatabases.icrc.org/applic/ihl/ihl.nsf/States.xsp?xp_viewSta
tes=XPages_NORMStatesParties&xp_treatySelected=470
622
For instance, Egypt, France and Germany have since considered
that reprisals against civilians in the conduct of hostilities is
prohibited. See: Egypt, Written statement submitted to the ICJ,
Nuclear Weapons Advisory Opinion, 20 June 1995, para. 46; France,
Manuel de droit des conflits armés, Ministère de la Défense,
Direction des Affaires Juridiques, Sous-direction du droit
international humanitaire et du droit européen, Bureau du droit des
conflits armés, 2001, p. 85 ; Germany, Druckschrift Einsatz n. 03,
Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch,
DSK SF009320187, Bundesministerium der Verteidigung, R II 3,
August 2006, p. 4.
623
See, e.g. United States of America, Department of Defense Law
of War Manual, Office of General Counsel, Department of Defense,
“it is difficult to conclude that there has yet crystallized a

customary rule specifically prohibiting reprisals against
civilians during the conduct of hostilities. Nevertheless, it is also
difficult to assert that a right to resort to such reprisals continues
to exist on the strength of the practice of only a limited number
of States, some of which is also ambiguous. Hence, there
appears, at a minimum, to exist a trend in favour of prohibiting
such reprisals.”624
This very cautious approach contradicted earlier ICTY

jurisprudence. In its review of the indictment in the Martić case
in 1996 and in its judgment in the Kupreškić case in 2000, the
ICTY found that customary law prohibits reprisals against
civilians in combat situations in all types of armed conflicts.625
It invoked several arguments, some of which were more
convincing than others. It first referred to IHL provisions
prohibiting reprisals. While assuming that articles 51, paragraph
6, and 52, paragraph 1, of Additional Protocol I were not
declaratory of customary law, it contended that they have
subsequently been transformed into general rules of
international law under the pressure of the principle of humanity
June 2015 (updated December 2016), pp. 1115-1116, para.

18.18.3.4. (Hereafter: US DoD Law of War Manual 2016). See also
(more narrowly) Italy, Manuale di diritto umanitario, Introduzione e
Volume I, Usi e convenzioni di Guerra, SMD – G- 014, Stato Maggiore
della Difesa, I Reparto, Ufficio Adestramento e Regolamenti, Rome,
1991, Vol. I, paras 23 and 25
624
ICRC Customary IHL Study, Commentary on rule 146. See also rule
147.
625
ICTY, Martić case, Review of the Indictment, 8 March 1996, paras.
15-17; ICTY, Kupreškić case, Judgment, 14 January 2000, paras 527-
531.
and the dictates of public conscience (Martens Clause) and under

the influence of human rights law.626
ZAIN’S ANALYSIS ON AI IN MODERN WARFARES:
Artificial intelligence (AI) is an umbrella term covering methods

to automate decision-making processes that required use of
human intelligence627. AI can impact domains (like land, sea, air,
space and information) and levels of warfare (like political,
strategic, operational and tactical).628
Conflict of opinions exist between international groups of

experts, some consider AI a positive development towards
reducing human causalities by replacing humans with machines
in missions. However, others cautiously argue on uncontrolled
nature of AI may result in another world war629
UNDERSTANDING AI
Many experts argue that AI itself should be considered as a

general-purpose technology with multitude of applications
rather than a specific weapon.630 It could enable a number of
military innovations, it is not a military innovation itself.”631
626
Kupreškić case, ibid., paras 527 and 529.
627
Hybrid CoE Working-Paper 6, AI
628
Svenmarck et al., “Possibilities and Challenges for AI in Military
Applications,” 1,
629
AI APPLICATION IN THE MILITARY THE CASE OF US & CHINA by
SHKURTI ÖZDEMIR
630
C. Horowitz, “AI, Texas National Security Review 1, 3(May
2018):39.
631
Horowitz,43
AUTONOMY: HUMAN-MACHINE RELATIONSHIP
In AI, human-machine relationship is one of the main topics

discussed with three debatable types: (i) human in the loop, (ii)
human on the loop, and (iii) human out of the loop.632. In first
type, the machine controls environment but human takes the
final-decision. In second type, the machine act and decide on its
own but human can supervise the system. Third type is fully
autonomous system where human has no control, the machine
acts and decides by itself. Currently, AI application has not yet
reached the full autonomy.633 Main discussions are about lethal
autonomous weapons systems (LAWS). Perhaps the mode of
lethal usage must be proportionate634. These are fully
autonomies system. There has been a movement to ban the
autonomous AI weapons but nowhere a clarification is made635
ICRC’S APPROACH TO NEW TECHNOLOGIES OF

WARFARE
The ICRC is not opposed to new technologies of warfare.

Certain military technologies may assist in minimizing the
humanitarian consequences of war on civilians, and ensure
respect for IHL. Usage of any new technology of warfare in
compliance with existing IHL rules is allowed.636 While making
632
M. Sayler, “AI & National Security” (Congressional-Research, 30-
January-2019), 2.
633
Payne, “AI : A Revolution in Strategic Affairs?,” 60, no. 5(2018):9
634
McCann v. UK, 1995,Para.148–149
635
HR-Watch and IHR Clinic, 2016
636
States party to AP1 to GCs have obligation to conduct legal
reviews of new weapons
choices states must consider “humanity” and “public

conscience” for civilians and hors de combat.637
USE OF AI AND MACHINE LEARNING
For the ICRC, critical functioning of autonomous weapon

systems are an immediate concern, given the unpredictable risk
of loss of human control over weapons and the use of force for
civilians.638 Any weapon regarding its admissibility must
qualify the principle of unnecessary suffering639 and
proportionality 640
States must determine whether the employment of new weapons

would be prohibited by IHL641 or relevant rules of IL.642
637
Principles of humanity & public conscience in Martens Clause
638
ICRC, Statements to CCW Group of Experts on Lethal
Autonomous Weapons Systems, 25–29-March-2019
639
Nuclear weapon case,p. 78
640
Henckaerts and Doswald-Beck, Customary IHL, Volume I: Rules,
244
641
Art. 1(2),35,36,51,AP1
642
CWC,CCW
UNIT: VIII
COMMAND RESPONSIBILITIES
Command responsibility Whether a commander can be held

criminally responsible for the breaches of IHL committed by his
subordinates was a central issue in the Yamashita case, which
was reviewed by the US Supreme Court in 1946.643 In this case,
General Tomuyuki Yamashita, the commander of the Japanese
forces in the Philippines in 1944–5, was charged with having
643
In Re Yamashita No. 61, Misc. Supreme Court of the United States
327 US 1; 66 S. Ct. 340; 90 L. Ed. 499; 1946 U.S. LEXIS 3090. The
relevant charge held against General Yamashita was that ‘‘the law of
war imposes on an army commander a duty to take such appropriate
measures as are within his power to control the troops under his
command for the prevention of acts which are violations of the law
of war and which are likely to attend the occupation of hostile
territory by an uncontrolled soldiery; and he may be charged with
personal responsibility for his failure to take such measures when
violations result.’’
failed to discharge his duty to control the operations of persons

under his command who had violated the laws of war. The
majority judgment, delivered by Chief Justice Stone, enounced
the principle that the laws of war impose upon an army
commander a duty to take such appropriate measures as are
within his power to control the troops under his command and
prevent them from committing violations of the laws of war. In
the view of the court, the absence of such an affirmative duty for
commanders to prevent violations of the laws of war would
defeat the very purpose of those laws. To quote the Court,
It is evident that the conduct of military operations by troops

whose excesses are unrestrained by the orders or efforts of their
commander would almost certainly result in violations which it
is the purpose of the law of war to prevent. Its purpose to protect
civilian populations and prisoners of war from brutality would
largely be defeated if the commander of an invading army could
with impunity neglect to take reasonable measures for their
protection. Hence the law of war presupposes that its violation
is to be avoided through the control of the operations of war by
commanders who are to some extent responsible for their
subordinates. Commanders thus were deemed to have a clear
responsibility to control subordinates and to ensure that they
respected IHL. Failure to do so where violations of IHL were
committed warranted penal action and punishment fitting the
crimes.644 As aptly stated in the post-Second World War case of
the United States v. Wilhelm von Leeb et al. (High Command
Case), ‘‘under basic principles of command authority and
644
The US Supreme Court ultimately upheld the death sentence
imposed by the Military Commission on General Yamashita
responsibility, an officer who merely stands by while his

subordinates execute a criminal order of his superiors which he
knows is criminal violates a moral obligation under international
law. By doing nothing he cannot wash his hands of international
responsibility.’’645 From an IHL perspective, it took another
thirty years or so to have these principles codified in a
convention. The precedents set by the post-Second World War
cases, including the above and those from the International
Military Tribunal for the Far East (Tokyo Tribunal) and the US
Military Tribunal at Nuremberg to a certain degree influenced
the drafting of the text of Article 86 (failure to act) of the 1977
Protocol I Additional to the 1949 Geneva Conventions
(Additional Protocol I):
1. The High Contracting Parties and the Parties to the conflict

shall repress grave breaches, and take measures necessary to
suppress all other breaches, of the Conventions or of this
Protocol which result from a failure to act when under a duty to
do so.
2. The fact that a breach of the Conventions or of this Protocol

was committed by a subordinate does not absolve his superiors
from penal or disciplinary responsibility, as the case may be, if
they knew, or had information which should have enabled them
to conclude in the circumstances at the time, that he was
committing or was going to commit such a breach and if they did
not take all feasible measures within their power to prevent or
645
United States v. Wilhelm von Leeb et al., Trials of War Criminals
before the Nuremberg Military Tribunals under Control Council Law
No. 10, Vol. XI (US Govt. Printing Office, Washington, 1950), at 1230,
1303
repress the breach. Command responsibility is now recognized

in many national military manuals and has been the subject of
further developments in particular by the various international
criminal tribunals, both in their constitutive documents and in
their jurisprudence.646 The Statute of the International Criminal
Tribunal for Rwanda (ICTR) and that of the International
Criminal Tribunal for the former Yugoslavia (ICTY) read, The
fact that any of the acts referred to in … the present Statute was
committed by a subordinate does not relieve his or her superior
of criminal responsibility if he or she knew or had reason to
know that the subordinate was about to commit such acts or had
done so and the superior failed to take the necessary and
reasonable measures to prevent such acts or to punish the
perpetrators thereof. The main reason for the development of this
form of responsibility, notably in the international criminal
arena, lies in the recognition that crimes are often committed by
low-level officials or military personnel because their superiors
646
For instance the United Kingdom’s Manual of the Law of Armed
Conflict explains, ‘‘Military commanders are responsible for
preventing violations of the law (including the law of armed conflict)
and for taking the necessary disciplinary action. A commander will be
criminally responsible if he participates in the commission of a war
crime himself … particularly if he orders its commission. However, he
also becomes criminally responsible if he ‘‘knew, or owing to the
circumstances at the time, should have known’’ that war crimes
were being or were about to be committed and failed ‘‘to take all
necessary and reasonable measures within his or her power to
prevent or repress their commission or to submit the matter to the
competent authority for investigation and prosecution’’. Ministry of
Defence, Manual of the Law of Armed Conflict, Oxford University
Press, Oxford, 2004, para. 16.36.
failed to prevent or repress them.647 As mentioned above, it is

generally agreed that command responsibility is necessary to
enable prosecutions beyond the direct perpetrators of the crimes.
Without this form of responsibility, superiors could absolve
themselves of any wrongdoing, for instance by arguing that the
subordinates were not following orders when they committed
crimes, or that they were at no time at the scene of the violations.
Today the law is clear: one is dutybound as a commander to
intervene when acts of subordinates constituted or would
constitute violations of IHL, and to prevent or repress these.
CONDITIONS FOR ESTABLISHING COMMAND

RESPONSIBILITY
From the jurisprudence emanating from the international

criminal tribunals, it is generally agreed that in order to establish
command responsibility three key elements must be met. First,
there has to be a superior/subordinate relationship. As explained
in the ICRC Commentary on Article 86 of Additional Protocol
I, ‘‘we are concerned only with the superior who has a personal
responsibility with regard to the perpetrator of the acts concerned
because the latter, being his subordinate, is under his control.…
The concept of the superior … should be seen in terms of a
hierarchy encompassing the concept of control.’’648 This
relationship can be de jure or de facto, with the exercise of
647
See A. Cassese, International Criminal Law, Oxford University
Press, Oxford, 2003, p. 205
648
Commentary to Protocol Additional to the Geneva Conventions of
12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I), 8 June 1977
(Commentary), ICRC/ Martinus Nijhoff Publishers, Leiden, 1987, p.
1013.
effective command, control or authority being determinative.649

Second, the superior knew or had reason to know that one or
several subordinate(s) committed or were about to commit
criminal acts. Third, the superior failed to take the necessary and
reasonable measures to prevent or punish the commission of said
acts. As discussed below, the latter two elements have been the
subject of much jurisprudence.
THE KNOWLEDGE REQUIREMENT: MILITARY

COMMANDERS VERSUS OTHER SUPERIORS
Traditionally, the extent and nature of the ‘‘knowledge’’

required of a superior regarding the actions of subordinates was
the same for both military commanders and other superiors (for
instance ministers, mayors, and directors of factories),
irrespective of office held. This is reflected in Rule 153 of the
649
See ICTY Appeals Judgement in Prosecutor v. Delalic´ et al.
(Cˇelebicí), Case No. IT-96-21-A, 20 February 2001, at 195: ‘‘The
power or authority to prevent or to punish does not solely arise from
de jure authority conferred through official appointment. In many
contemporary conflicts, there may be only de facto, self-proclaimed
governments and therefore de facto armies and paramilitary groups
subordinate thereto. Command structure, organised hastily, may
well be in disorder and primitive. To enforce the law in these
circumstances requires a determination of accountability not only of
individual offenders but of their commanders or other superiors who
were, based on evidence, in control of them without, however, a
formal commission or appointment. A tribunal could find itself
powerless to enforce humanitarian law against de facto superiors if
it only accepted as proof of command authority a formal letter of
authority, despite the fact that the superiors acted at the relevant
time with all the powers that would attach to an officially appointed
superior or commander.’’
ICRC’s customary law study: for both categories of superiors to

attract liability, it had to be shown that the superior either knew
or had reason to know.650Whilst establishing that the superior
knew has not been particularly contentious, the concept of had
reason to know, a form of constructive knowledge, has been the
subject of some jurisprudential debate. Article 86(2) of
Additional Protocol I sheds some light on this concept, in that
superiors will be deemed responsible if they had information
which should have enabled them to conclude, in the
circumstances at the time, that their subordinates were
committing or were going to commit a breach. Due to a slight
divergence between the English and French texts of Additional
Protocol I, the ICRC Commentary on the Protocol explains that
the information available to the superiors should be such as to
enable them to conclude rather than should have enabled them
to conclude. In other words, there must be some information
available to the superiors that puts them on notice of the
commission of IHL violations by subordinates. This standard
has been favoured by both the ICTR and ICTY Appeals
Chambers: [R]reason to know standard does not require that
actual knowledge, either explicit or circumstantial, be
established. Nor does it require that the Chamber be satisfied that
the accused actually knew that crimes had been committed or
were about to be committed. It merely requires that the Chamber
be satisfied that the accused had ‘‘some general information in
his possession, which would put him on notice of possible
650
Jean-Marie Henckaerts and Louise Doswald-Beck (eds.),
Customary International Humanitarian Law, 2 vols., ICRC and
Cambridge University Press, Geneva and Cambridge, 2005, I, pp.
558–562
unlawful acts by his subordinates’’.651 Interestingly, the Rome

Statute of the International Criminal Court (ICC), in its Article
28, advances two separate standards. For military commanders,
the test remains that the person either knew or, owing to the
circumstances at the time, should have known that the forces
under his or her command were committing or about to commit
such crimes. The should have known is not dissimilar to the
traditional had reason to know. By contrast, for other superiors
– that is non-military commanders – to incur liability, it must be
shown that the person either knew, or consciously disregarded
information that clearly indicated that the subordinates were
committing or about to commit such crimes. This approach was
followed in the ICTR’s Kayishema & Ruzindana case. Here the
trial chamber, having cited ICC Article 28 approvingly, stated
with regard to the command responsibility of civilian superiors,
In light of the objective of Article 6(3) which is to ascertain the
individual criminal responsibility for crimes as serious as
genocide, crimes against humanity and violations of Common
Article 3 to the Geneva Conventions and Additional Protocol II
thereto, the Chamber finds that the Prosecution must prove that
the accused in this case either knew, or consciously disregarded
information which clearly indicated or put him on notice that his
subordinates had committed, or were about to commit acts in
breach of Articles 2 to 4 of this Tribunal’s Statute.652 (Emphasis
is not in original). The ICC Statute thus introduces additional
elements that must be met to establish that a non-military
651
Prosecutor v. Bagilishema, Judgement (Reasons), Case No. ICTR-
95-1A-A, 3 July 2002 (Bagilishema Judgement), para. 28
652
Prosecutor v. Cle´ment Kayishema & Obed Ruzindana,
Judgement, Case No. ICTR-95-1-T, 21 May 1999, at 228.
superior had the requisite mens rea to be held liable through

command responsibility. It must be shown not only that the
superior had information in his possession regarding acts of his
subordinates, but that the superior consciously disregarded such
information, in other words, that he chose not to consider or act
upon it. The information must also clearly indicate that the
subordinates committed or were about to commit the crimes. To
some extent this goes further than the majority standard
elaborated by the ICTR or the ICTY by which the information
need merely put the superior on notice of possible unlawful acts
by his subordinates. An element of certainty rather than
possibility vis-a`-vis the commission of the crimes will therefore
have to be met under the ICC Statute for non-military superiors.
Notwithstanding the merits of the ICC and Kayishema &
Ruzindana standard, it does beg both legal as well as policy
questions. As mentioned above, one of the principal aims of
superior responsibility is to punish those individuals higher up
the hierarchical ladder who, whilst not the direct weapon
wielders, are deemed nonetheless to be criminally responsible
for failing to act appropriately in controlling and punishing
subordinates. Superior responsibility has proved to be a
particularly vital conduit for prosecutors at the international
tribunals to bring to trial heads of government, ministers and
other civilian superiors who, in their capacity as civilian
superiors, clearly played a substantial role in overseeing and
directing violations of IHL, crimes against humanity and
genocide, without necessarily setting foot in the arena of combat
or where the crimes were committed. By requiring it to be shown
that non-military commanders ‘‘consciously disregarded’’
information which ‘‘clearly indicated’’ that subordinates were
taking certain unlawful actions, the burden of proof to establish
superior responsibility for such commanders becomes that much

more exigent. Consequently, it might become more difficult
effectively to prosecute non-military commanders for violations
of IHL through command responsibility. Some may argue that
to so apply a different and stricter mens rea requirement for non-
military superiors can only weaken the fight against impunity, as
many of the accused before international criminal tribunals are
civilian leaders. Yet it could also be contended that this
differentiation is justified to the extent that, in civilian contexts,
superior–subordinate relationships are more often than not
premised on de facto rather than de jure control. The existence
of comparatively more formal and institutionalized relationships
in military situations places a greater onus on military superiors
to act on information, even where such information merely
suggests rather than clearly indicates that IHL violations are
committed by their subordinates.
‘‘NECESSARY AND REASONABLE’’ MEASURES
Under Article 86(2) of Additional Protocol I, superiors are

required to take all feasible measures within their power to
prevent or repress a breach of IHL by their subordinates. In
international criminal law, the standard that has been introduced
is one of a failing by the superior to take the necessary and
reasonable measures within his power to prevent or repress the
commission of the crimes by his subordinates. Most domestic
legal systems provide succinct definitions of ‘‘reasonable’’ and
also, but to a lesser extent, of ‘‘necessary’’. International
criminal jurisprudence speaks of a ‘‘reasonableness in the
circumstances’’ test, and tends to treat ‘‘reasonable’’ and
‘‘necessary’’ in unison.653 Yet the application of such a test in

relation to serious violations of IHL, crimes against humanity
and genocide could be problematic Cases in which serious
violations of IHL, crimes against humanity and genocide have
been committed, when compared with most domestic criminal
cases, present a complicated set of facts, often implicate several
perpetrators and involve numerous victims. They usually occur
in situations where the normal fabric of society and recognizable
chains of command have been destroyed, with civilians and
military, and victims and executioners, commingled. As Justice
Murphy, in his dissent in Yamashita, reasoned, Duties, as well
as ability to control troops, vary according to the nature and
intensity of the particular battle. To find an unlawful deviation
from duty under battle conditions requires difficult and
speculative calculations. Such calculations become highly
untrustworthy when they are made by the victor in relation to the
actions of a vanquished actor. Objective and realistic norms of
conduct are then extremely unlikely to be used in forming a
judgment as to deviations from duty.654 A perusal of factual
findings from judgments of the ICTY, the ICTR and the Special
Court of Sierra Leone (SCSL) confirms that, due to the
complexity of events on the ground, attempting to transpose
653
Although it should be noted that in some ICTY cases the
prosecution has sought to define both: ‘‘‘‘Necessary measures’’ are
those required to discharge the obligation to prevent or punish, in
the circumstances prevailing at the time. ‘‘Reasonable’’ measures
are those which the commander was in a position to take in the
circumstances prevailing at the time.’’ See Prosecutor v. Tihomir
Blasˇkic´, Judgement, 3 March 2000, Case No. IT-95-14, at 333
654
Justice Murphy was concerned that desires for vengeance would
permeate ‘‘victors’ justice’’ and lead to unfair trials
these facts to a court environment and seeking to define which

measures were reasonable and necessary in the circumstances
can be a fraught exercise. Such a determination cannot be made
in abstracto and is dependent on the nature and extent of
evidence presented in court. Yet despite myriad procedural and
evidential safeguards it may still be questionable whether, in the
light of the chaotic nature of the events during which most
violations were committed, it is realistic to rely on the statements
of ‘‘a reasonable man in the position/circumstances of the
accused’’ in order to assess whether the accused took the
necessary and reasonable measures. It could be argued that
without the benefit of H. G. Wells’s time machine, there remains
the risk that accused persons are in a ‘‘no-win situation’’, with
judges painstakingly evaluating and imputing the measure of an
accused’s authority over his subordinates.655 By way of example,
the ICTR trial chamber’s reasoning in Musema merits mention,
with suggestions by the judges of measures which, in their view,
the defendant could have taken against his subordinates in the
circumstances: The Chamber finds that it has been established
beyond reasonable doubt that Musema exercised de jure
authority over employees of the Gisovu Tea Factory while they
were on Tea Factory premises and while they were engaged in
their professional duties as employees of the Tea Factory, even
if those duties were performed outside factory premises. The
Chamber notes that Musema exercised legal and financial
655
See, e.g., the different conclusions reached in the Bagilishema
Judgement, above note 12, on the one hand by Judge Asoka de Z.
Gunawardana in his Separate Opinion and on the other by Judge
Mehmet Guney in his Separate and Dissenting Opinion, with regard
to the authority and responsibility of the accused during massacres
in his commune
control over these employees, particularly through his power to

appoint and remove these employees from their positions at the
Tea Factory. The Chamber notes that Musema was in a position,
by virtue of these powers, to take reasonable measures, such as
removing, or threatening to remove, an individual from his or
her position at the Tea Factory if he or she was identified as a
perpetrator of crimes punishable under the Statute. The Chamber
also finds that, by virtue of these powers, Musema was in a
position to take reasonable measures to attempt to prevent or to
punish the use of Tea Factory vehicles, uniforms or other Tea
Factory property in the commission of such crimes. The
Chamber finds that Musema exercised de jure power and de
facto control over Tea Factory employees and the resources of
the Tea Factory.656 The judges have been sensitive to the rights
of the accused and to the risk of expecting more than was within
the capacity of a superior at the time of the violations. As the
ICTY reasoned in Cˇelebicí, it must ‘‘be recognised that
international law cannot oblige a superior to perform the
impossible. Hence, a superior may only be held criminally
responsible for failing to take such measures within his powers
… [or] within his material possibility.’’657 In Blasˇkic´, the
Appeals Chamber added that ‘‘necessary and reasonable
measures are such that can be taken within the competence of a
commander as evidenced by the degree of effective control he
wielded over his subordinates’’.658 This approach is in line with
656
Prosecutor v. Alfred Musema, Judgement, 27 January 2000, Case
No. ICTR-96-13-T, at 880
657
Prosecutor v. Delalic´ et al. (Cˇelebicí), Judgement, Case No. IT-
96-21-T, 16 November 1998, at 395.
658
Prosecutor v. Tihomir Blasˇkic´, Appeals Judgment, 29 July 2004,
Case No. IT-95-14-A 29 July 2004, at 72.
Article 86 of Additional Protocol I, which, as indicated above,

refers to the taking of ‘‘all feasible measures within their
power’’. The ICRC Commentary on this article explains that the
language ‘‘reasonably restricts the obligation upon superiors to
‘‘feasible’’ measures, since it is not always possible to prevent a
breach or punish the perpetrators. In addition, it is a matter of
common sense that the measures concerned are described as
those ‘‘within their power and only those’’.’’ These last two
words are restrictive, closing the door on possible speculation as
to which actions may have been ‘‘reasonable’’. Many national
military manuals reflect the language of Article 86 rather than
the combination of ‘‘reasonable and necessary’’ found in some
international legal texts. Case law will undoubtedly further
elaborate on the understanding of reasonable and necessary
measures. At this stage, though, it would seem that the applicable
test is more means-based than results-oriented, and that the
measures to be taken must be within the power of the accused.
Yet even this pragmatic standard can be subject to varying
interpretations. Some would argue that ‘‘reasonable and
necessary’’ is synonymous with ‘‘practicable or practically
possible’’. Others, however, suggest that the prevalence of
exceptional circumstances (such as genocidal massacres)
requires the superior to take extraordinary measures to prevent
and punish his subordinates.659 Whichever standpoint is
favoured, any assessment as to effective control has to be
cautious and empathetic, with due regard to the rights of the
accused. Heavier sentences for superiors International
humanitarian law and international criminal justice place upon
659
See, e.g., above, notes 16 and 17, judgements and proceedings in
the ICTR cases of Bagilishema and Musema.
superiors a greater responsibility than that of their subordinates

in ensuring that the law is not violated. Superiors, by virtue of
their elevated position in the hierarchy, have an affirmative duty
to ensure that IHL is duly respected and that breaches are
appropriately repressed. Their failure to do so can be interpreted
as acquiescence in the unlawful acts of their subordinates,
thereby encouraging further breaches and developing a culture
of impunity. Courts have taken into account the ‘‘command
position’’ of an accused in sentencing. Whilst recognizing that
the length of a sentence is to be determined on the basis of the
nature and gravity of the crime, case law of the international
criminal tribunals seems to dictate that the status as a superior
will in itself be considered an aggravating factor. International
criminal tribunals have delved extensively into the issue of
appropriate sentencing for commanders. The reasoning in the
case law is that a command position may justify a harsher
sentence, in particular if the accused held a high position within
the civilian or military command structure. The jurisprudence is
clear, in that a position of authority, whether civilian or military,
gives rise to both duty and trust which, if broken or abused,
would tend to aggravate the sentence.660 The tribunals have
further explained that when a commander fails in his duty to
prevent the crime or to punish the perpetrator thereof, he should
receive a heavier sentence than the subordinates who committed
the crime. The justification in imposing a harsher sentence stems
from the fact that where a commander fails to punish his
subordinates for committing crimes or to prevent them from
660
See notably Prosecutor v. Jean Kambanda, Case No. ICTR 97-23-S,
Judgement and Sentence, 4 September 1998; Prosecutor v. Jean Paul
Akayesu, Case No. ICTR-96-4-T, Sentence, 2 October 1998.
doing so, this creates an impression of tolerance, acquiescence

or even approval vis-a`-vis the actions of the subordinates. The
tribunals have concluded that it would be inconsistent to punish
a simple perpetrator with a sentence equal to or greater than that
of the commander: Therefore, when a commander fails in his
duty to prevent the crime or to punish the perpetrator thereof he
should receive a heavier sentence than the subordinates who
committed the crime insofar as the failing conveys some
tolerance or even approval on the part of the commander towards
the commission of crimes by his subordinates and thus
contributes to encouraging the commission of new crimes. It
would not in fact be consistent to punish a simple perpetrator
with a sentence equal or greater to that of the commander.661
As such, the consequences of a person’s acts are necessarily

more serious if he is at the apex of a military or political
hierarchy and uses his position to commit crimes. Because he is
a leader, his conduct is that much more reprehensible: This
Chamber finds as an aggravating circumstance that Kayishema,
as Prefect, held a position of authority. This Chamber finds that
Kayishema was a leader in the genocide in Kibuye Prefecture
and this abuse of power and betrayal of his office constitutes the
most significant aggravating circumstance.662 The case law
points to a simple conclusion, namely that civilian and military
commanders are deserving of harsher sentences than their
subordinates. The mere fact of being in a position of
responsibility will be seen as an aggravating factor: Command
661
Prosecutor v. Tihomir Blasˇkic´, Judgement, Case No. IT-95-14-T, 3
March 2000, at 789.
662
Prosecutor v. Cle´ment Kayishema & Obed Ruzindana, Sentence,
Case No. ICTR-95-1-T, 21 May 1999, at 15.
position must therefore systematically increase the sentence or

at least lead the Trial Chamber to give less weight to the
mitigating circumstances, independently of the issue of the form
of participation in the crime.663 It could be argued that in the
above cited precedents too much weight is given to the accused’s
position as superior in determining the sentence, rather than to
the severity of the crime itself. Indeed, taken literally, the case
law suggests that a superior who failed to punish a subordinate
for murder should face a greater punishment than the murderer,
even if such superior did not possess the necessary specific intent
to commit murder. However, the jurisprudence does reflect the
fact that with rank come responsibility and the duty to intervene.
MANIFESTLY ILLEGAL ORDERS
In many contexts in which war crimes are committed by military

personnel, subordinates will plead that they were merely
following orders when carrying out certain unlawful actions.
More often than not, the subordinate will not question the
legality of an order, there being an inbuilt presumption that
superiors are better placed to determine ‘‘wrong from right’’ in
the conduct of hostilities. At other times, though, where the order
seems to go beyond what is legally permissible, a subordinate
will be faced with a choice: (i) disobey, and face possible
reprimand and punishment by the superior or a court-martial; or
(ii) obey, and risk criminal punishment by acting upon an order
which has unlawful consequences. The lower the rank of the
subordinate, the more difficult it may be to disobey an illegal
order. This raises a dilemma, both moral and legal, for the
subordinate. Whilst it is often argued that discipline and the
663
Blasˇkic´ Judgement, above note 23, at 789.
unquestioning execution of orders are essential to succeed in

battle, the law recognizes that there are limits to the ‘‘blind
obedience’’ expected of subordinates. Subordinates will not be
able to escape punishment by virtue of merely acting in
pursuance of an order, where the order was manifestly illegal.
Traditionally it was felt that the subordinate, whilst committing
the offensive deed, should not incur responsibility for following
the illegal order. The rationale behind allowing an accused to
raise a defence of superior orders was based on practical
common sense. To disobey an order can lead to reprimand,
demotion and even court martial. After all, a soldier’s first duty
is to obey orders from a superior. Hence allowing a subordinate
to raise a defence of superior orders recognizes that subordinates
within the military have little or no discretion in questioning
orders of superiors.664 However, First World War case law
suggested that the defence of superior orders would be
unavailable unless the subordinate did not know that the order
was in itself illegal and would result in the commission of a
crime. The raison d’eˆtre of this approach is that knowledge of
the illegality presupposes a moral choice to obey or not, which
in certain circumstances may trump the little discretion
subordinates had in not following orders. Two First World War
cases highlight this. In Dover Castle, a German submarine
commander who torpedoed a British hospital ship successfully
raised the defence of superior orders on the basis that German
government and Admiralty memoranda had been
communicated, indicating that hospital ships were being used for
military purposes in violation of the laws of war. Thus the
664
See, e.g., L. Oppenheim, International Law: A Treatise, Vol. 2, 6th
edn, 1940 ed. H. Lauterpacht (London: Longman, Green & Co.).
commander did not know that the order was unlawful, as the
memoranda suggested that the ships were legitimate targets.665
By contrast, in the Llandovery Castle case two subordinates who
followed their submarine commander’s order to open fire on the
survivors of the torpedoed Llandovery Castle hospital ship in
their lifeboats had their defence of superior orders turned down.
Here, the order was seen to be in violation of a universally
known rule of international law. The subordinates could not as
such claim their ignorance of the illegality.666 After the Second
World War the courts also denied access to the defence of
superior orders, ruling it to be unavailable where a subordinate
has a ‘‘moral choice’’ to obey or disobey the order. This
approach assumes that there are clear situations where
subordinates should question and not follow certain orders
which, by their very nature, are outside the realm of that which
is morally and legally permissible. The Nuremberg Principles
echoed this standard: The 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 that a
moral choice was in fact possible to him.667 In the recent Finta
case, the Supreme Court of Canada opined that a defence of
superior orders could be raised in certain circumstances, in
particular where the subordinate has no moral choice as to
obeying the order, even where the order was manifestly illegal:
The defence of obedience to superior orders and the peace
officer defence are available to members of the military or police
forces in prosecutions for war crimes and crimes against
665
Dover Castle, 16 AJIL (1921), 704.
666
Llandovery Castle, 16 AJIL (1921), 708.
667
Principle IV of the Nuremberg Principles
humanity. Those defences are subject to the manifest illegality

test: the defences are not available where the orders in question
were manifestly unlawful. Even where the orders were
manifestly unlawful, the defence of obedience to superior orders
and the peace officer defence will be available in those
circumstances where the accused had no moral choice as to
whether to follow the orders. There can be no moral choice
where there was such an air of compulsion and threat to the
accused that he or she had no alternative but to obey the
orders.668 The ad hoc international criminal jurisdictions have
gone further, striking out altogether the possibility of raising a
defence of superior orders. Instead, the Statutes of the ICTR and
the ICTY allow only for mitigation of sentence: [T]he fact that
an accused person acted pursuant to an order of a Government
or of a superior shall not relieve him of criminal responsibility,
but may be considered in mitigation of punishment if the
International Tribunal determines that justice so requires.669
Article 33 of the ICC Statute does not allow a defence of superior
orders if the order was manifestly illegal:
1. The 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 unless:
a) The person was under a legal obligation to obey orders of the

Government or the superior in question;
b) The person did not know that the order was unlawful; and
668
R v. Finta [1994] 1 SCR [701], Supreme Court of Canada
669
ICTR Statute, Article 6(4); ICTY Statute, Article 7(4).
c) The order was not manifestly unlawful.
2. For the purposes of this article, orders to commit genocide or

crimes against humanity are manifestly unlawful. This reflects
Rule 155 of the ICRC’s customary law study, whereby criminal
responsibility remains if the manifest illegality of the order was
known: Obeying a superior order does not relieve a subordinate
of criminal responsibility if the subordinate knew that the act
ordered was unlawful and should have known because of the
manifestly unlawful nature of the act ordered.670 It could be
argued, given the ICC’s position, that contemporary practice
might allow the defence of superior orders if a subordinate can
show that the order was not manifestly illegal or that he did not
know and could not have known of the order’s illegality. Rule
11 of Canada’s 2001 military code of conduct explains: Orders
must be followed. Military effectiveness depends on the prompt
obedience to orders. Virtually all orders you will receive from
your superiors will be lawful, straightforward and require little
clarification. What happens, however, if you receive an order
that you believe to be questionable? Your first step of course
must be to seek clarification. Then, if after doing so the order
still appears to be questionable, in accordance with military
custom you should still obey and execute the order – unless – the
order is manifestly unlawful. In other words, a subordinate must
disobey an illegal order only when he knows that such order is
manifestly illegal. A difficulty for the subordinate, though, could
be in assessing whether an order is ‘‘manifestly
unlawful/illegal’’. Jurisprudence and academic treatises define a
manifestly illegal order as one which offends the conscience of
670
Henckaerts and Doswald-Beck, above note 10, pp. 565–8
every reasonable, right-thinking person and which is patently

and obviously wrong. Case law refers to the order being blatantly
unlawful leaving no reasonable doubt as to its unlawfulness. The
identifying mark of a ‘‘manifestly unlawful’’ order must wave
like a black flag above the order given, as a warning saying:
‘‘forbidden’’. It is … not unlawfulness that is detectable only by
legal experts … but an overt and salient violation, a certain and
obvious unlawfulness that stems from the order itself, … an
unlawfulness that pierces the eye and agitates the heart, if the
eye be not blind nor the heart closed or corrupt.671 Interestingly,
under Article 33 of the ICC Statute, orders to commit genocide
and crimes against humanity are deemed to be manifestly
unlawful, whereas the same is not expressly applicable to orders
to commit war crimes. It could thus be inferred that the ICC does
allow for a defence of superior orders in situations where war
crimes have been committed. To so allow such a defence is
arguably understandable, given the complexity of modern-day
asymmetrical warfare, with myriad parties involved, the blurring
of the distinction between combatants and civilians, and the
conduct of hostilities and control of weapons from distant
operation centres rather than in the field of combat. The realities
of contemporary warfare may make the task of assessing and
distinguishing right from wrong, permissible from manifestly
illegal, that much more of an arduous task for subordinates in the
midst of combat. Indeed, a number of the war crimes listed in
Article 8 of the ICC Statute may not necessarily be that patently
671
Israel, District Military Court for the Central Judicial District, Ofer,
Malinki and Others case, Judgement, 13 October 1958.
obvious without certain specific training or expertise.672 This

being so, it could be considered as unjust to punish lay
subordinates who acted in good faith.673
CONCLUSION
The principle that commanders and other superiors should be

held criminally responsible for failing to prevent or punish
subordinates committing IHL violations has been developed
through international criminal jurisprudence, codified in
Additional Protocol I and is now arguably considered to form
part of international customary law. It is widely accepted that for
a commander to turn a blind eye to crimes committed by
subordinates can but encourage further violations of IHL. It is
also acknowledged that it would be wrong for commanders to be
able to escape any form of liability simply because they did not
wield the weapon that dealt the fatal blow. Similarly,
subordinates who violate IHL should not be able to escape
punishment on the pretext that they were merely following
orders, when the orders were stained with manifest illegality.
However, despite these advances in repressing perpetrators of
IHL violations, irrespective of their hierarchical position, the
672
For instance, declaring abolished, suspended or inadmissible in a
court of law the rights and actions of the nationals of the hostile
party; employing bullets which expand or flatten easily in the human
body, such as bullets with a hard envelope which does not entirely
cover the core or is pierced with incisions; or intentionally directing
attacks against buildings dedicated to, inter alia, science or
charitable purposes.
673
See Charles Garraway, ‘‘Superior orders and the International
Criminal Court: justice delivered or justice denied?’’, International
Review of the Red Cross, Vol. 81, no. 836 (1999), pp. 785–94
evolving jurisprudence in this field has given rise to a number of

questions and has highlighted the difficulties in establishing the
liability of commanders and assessing which action, if any, they
could have taken in the prevailing circumstances to prevent the
commission of IHL violations by subordinates. Some would
argue that the standards expected of commanders in the midst of
battle are untenable, and likewise that it is unrealistic to expect
subordinates to question or disobey orders, however unlawful
they may seem. It is with such issues considered that the theory
of command responsibility has evolved, seeking to strike the
right balance between the obligations placed upon superiors, and
the individual actions of a subordinate in the midst of battle
which escape their remit.

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A GUIDE TO THE SYSTEMATIC MECHANISM OF WARFARE 1

What is International Humanitarian Law?

The international humanitarian law (IHL) is a set of rules

note that IHL is a les specialis which starts applying when

IHL is a part of the international law, which has been agreed

DIFFERENCES BETWEEN HUMAN RIGHTS AND IHL

Both human rights law and IHL technically apply in armed

However, such suspension must be proportionate to the crisis;

of a State, such as rebel groups, in a situation of internal armed

EMERGENCE OF INTERNATIONAL CRIMINAL LAW

International criminal law provides a means for the enforcement

Subsequently, in 1993, the UN Security Council, by Resolution

Security Council, by Resolution 955, set up an International

The latest development in the field of international criminal law

Hence war crimes in international criminal law are also

International criminal law and human rights also share some

The Rome Statute of the International Criminal Court has taken

Historically, IHL has its sources in bilateral treaties,

The most important treaties regulating the actions of

• The Hague Conventions of 1899 & 1907 and

Customs of War on Land;

• Additional Protocols I, II (1977), and III (2005) to

CUSTOMARY INTERNATIONAL LAW

Customary international law refers to unwritten rules of law

(Hague II), 29 July 1899. ”

The Statute of the International Court of Justice describes

one other state or relevant international organization.

The rules regulating armed conflict are also to be found in

World War II and the case law of the International Criminal

• Military and Paramilitary Activities in and against

• Tadic decision by ICTY appeals chamber.

• In 2006, the US Supreme Court decided on the

BASIC PRINCIPLES OF IHL

The entire IHL is based on and revolve around some core

legitimate to kill but there are some parameters laid down by

to the torture and biological experiments or physical mutation,5

Nuremberg Trails against Nazi Leaders 145-48:

principles of IHL that are important and recognized are

Prosecutor v Kupreskic case:

In this Case the defendants were charged for persecution of

war victims cannot be seen by pure positivist approach. If we go

In case, if there are some grey areas not covered by the

The Nuclear Weapons Convention Case, ICJ:

ICJ in its Advisory Opinion on legality of the threat or use of the

Thus the entire IHL revolves around this important principle. It

II. PRINCIPLE OF DISTINCTION:

of distinction provides some absolute exceptions in case of

a. Civilians ( not taking part in hostilities)

What the concept of non-discrimination is in the regime of

manner regardless of their race, religion, sex and political

DISTINCTION BETWEEN CIVILIANS AND

Principle of distinction obligates the parties to the armed to

the dictionary is all the acts and movements related to the

COMBATANT: All the members of armed forces of party

CIVILIANS AND CIVILIAN POPULATION: A civilian

ambit of civilians does not deprive the civilian population

Prosecutor v Rajko Radulovic case:

Inter-American Commission on Human rights in

MILITARY OBJECTIVES: The only legitimate target

military objectives and legitimate target35, Even if a civilian