Dieter Fleck

Cap I.1 Definitia Dreptului Umanitar

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International humanitarian law constitutes a reaffirmation and
development ofthe traditional international laws ofwar (ius in bello).
In this context, most rules of the law ofwar now extend even to those
international armed conflicts which the parties do not regard as wars.
The term 'international humanitarian law' takes this development
into account.

Scope of 'International Humanitarian Law'. The term 'international

humanitarian law' is of relatively recent origin and does not appear in the Geneva
Conventions of 1949.56 International humanitarian law comprises all those rules of
international law which are designed to regulate the treatment of the individual civilian
or military, wounded or active-in international armed conflicts. While
the term is generally used in connection with the Geneva Conventions and the
Additional Protocols of 1977, it also applies to the rules governing methods and
means of warfare and the government of occupied territory, for example, which
are contained in earlier agreements such as the Hague Conventions of 1907 and in
treaties such as the Inhumane Weapons Convention of 1980.

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International humanitarian law sets certain bounds to the use of
force against an adversary. It determines both the relationship of
the parties to a conflictwith one another and their relationship with
neutral states. Certain provisions of international humanitarian
law are also applicable in the relationship between the state and its
own citizens.
Humanitarian law sets limits to the way in which force may be used
by prohibiting certain weapons (such as poison gas) and methods of warfare (such as
indiscriminate attacks), by insisting that attacks be directed only at military objectives,
and even then, that they should not cause disproportionate civilian casualties.

Cap IV. METHODS AND MEANS OF COMBAT

1. General Rules

The right of the parties to an armed conflict to choose means (Article 22 HagueReg) and
methods (Article 35, para. 1, AP I) of warfare is not unlimited. It is particularly prohibited
to employ means or methods which are intended or of a nature:
- to cause superfluous injury or unnecessary suffering
 (Article 23 lit. e HagueReg; Article 35, para. 2, AP I);
- to cause widespread, long-term, and severe damage to the natural
environment (Artides 35, para. 3, and 55, para. 1, AP I; ENMOD); or
- to injure military objectives, civilians, or civilian objects without
distinction (Article 51, paras. 4 and 5,AP I).
Similar questions can be asked about the most recent exposition of the principle
of 'limited warfare', namely the prohibition against methods of warfare
which cause widespread, long-term, and severe damage to the natural environment
(cf. Section 403). This sub-principle might also be deduced logically from the
requirements ofmilitary necessity, and from its supplement, the principle of proportionality
of the damages inflicted in relation to the military objective.55 However,
the military practice of the last decades demonstrates considerable carelessness on . .
the part of belligerent forces as to the preservation of the natural environment.
Thus, it seemed sensible to embody provisions which explicitly include the environment
as an object entitled to the protection granted by the rules of humanitarian law.56 The
Convention on the Prohibition of Military or Any Other Hostile Use of Environmental
Modification Techniques (ENMOD Convention) of 1977 and Articles 35, para. 3, and 55, para.
1, AP I accordingly addressed that problem. The relationship between these treaties, however,
as well as their relationship to the rules of customary law is problematic and needs further
analysis (cf. Section 403).

Cap.III Methods of Combat

1.Military Objectives
any acts of violence against the adversary, whether in offence or in defense (Article 49,
para. 1, AP I), shall be limited exclusively to military objectives.

Article 48 AP I, which explicitly lays down such a maxim of 'limited warfare’,makes use of the
rather untechnical term 'operations' ('. . .shall direct their operations only against military
objectives'). Article 49, para. 1, AP I goes on to give an express definition of what constitutes an
'attack' in the technical sense of the Protocol: 'Attacks' are all 'acts of violence against the
adversary, whether in offence or in defence'. This definition raises another question, however:
namely whether the term 'attacks'-which must be understood as identical with 'acts of violence
against the adversary1-has a narrower meaning than the rather wide term 'military operations'.
The answer must be yes, since many types ofmilitary operations are carried out without any
direct violence against the adversary. Such military operations performed without the direct use
ofviolence do not need any limitation concerning legitimate objectives of attack, i.e. 'military
objectives', since they entail no risk of direct violence for the civilian population.291

Military objectives are armed forces-with paratroops in descent (Article 42, para. 3, AP I) but
not crew members parachuting from an aircraft in distress (Article 42, para. l,AP I)-and also
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, offer a definite military advantage (Article 52, para. 2,
Protocol I of 10 June 1977, Additional to the Geneva
Conventions of 12 August 1949).

Military objectives include particularly:

- armed forces;
- military aircraft and war ships;
- buildings and objects for combat service support; and
- commercial objectives which make an effective contribution to
military action (transport facilities, industrial plants, etc.).

3. Protection of Works and Installations Containing

Dangerous Forces

Works and installations containing dangerous forces, namely dams,

dykes, and nuclear electricity generating stations (Article 56, para. 1,
AP I) shall not be made the object of attack, even where these objects
are military objectives, if such attack could cause the release of dangerous
forces and consequent severe damage to the civilian population
(Article 56, para. 1, Protocol I of 10 June 1977, Additional to the Geneva Conventions of 12
August 1949 ).

Nuclear electricity generating stations often constitute the central source of energy for modern
electricity supply networks, and thus constitute- in contrast to dams and dykes-in their normal
function a military objective of the first order.558 Their contribution to military operations-i.e.
the delivery of electric energy in 'regular, significant, and direct support of military operations' -
can sometimes only be neutralized by destroying the power plant. In order to justify the
extremely high risks of collateral damage resulting from such an attack, however, it is essential
that the attack is absolutely necessary, which means that there must not exist any other
'feasible way' to terminate the support flowing from the nuclear plant. Accordingly, the
exception of Article 56, para. 2 lit. b requires that there must be no other way of neutralizing
the power supply, for example by destroying the essential installations of the distribution
network (transformer stations, or main circuit lines).559

The decision to launch an attack shall be taken on the basis of all

information available at the time of action. The parties to a conflict
shall be bound by the principle of proportionality to refrain from
launching an attack if the risk of releasing dangerous forces is such
that it is excessive to any military advantage.
AP1 Protocol I of 10 June 1977, Additional to the Geneva
Conventions of 12 August 1949

AP2 Protocol I1 of 10 June 1977, Additional to the Geneva

Conventions of 12 August 1949

AP3 Protocol 111 of 8 December 2005, Additional to the Geneva

Conventions of 12 August 1949

HagueReg Hague Regulations of 18 October 1907 concerning the Laws and

Customs of War on Land