Villanueva IHL Notes

NOTES FOR LAW 266 – INTERNATIONAL HUMANITARIAN LAW
Module I.
Concept, Sources and Application of IHL
A. What is IHL?
1. Concept and purpose

Definition
• IHL is a set of rules that seek to limit the humanitarian
consequences of armed conflicts.
• It is sometimes also referred to as the law of armed conflict or the
law in war (jus in bello). [as against jus ad bellum or laws of war]
Purpose
• The primary purpose of IHL is to restrict the means and methods of
warfare that parties to a conflict may employ and to ensure the
protection and humane treatment of persons who are not, or no
longer, taking a direct part in the hostilities. Strikes a balance
between considerations of military necessity and humanity.
• On the one hand, it recognizes that, in order to overcome an
adversary in wartime, it may be militarily necessary to cause
death, injury and destruction, and to impose more severe security
measures than would be permissible in peacetime.
2. Historical Development
• all civilizations and religions have tried to limit its devastating
effects by subjecting warriors to customary practices, codes of
honour and local or temporary agreements with the adversary.
• traditional forms of regulating warfare became largely ineffective
with the rise of con- scripted mass armies and the industrialized
production of powerful weapons in the course of the nineteenth
century (Napoleonic Wars to American Civil War)
• Jean Henri Dunant – Un Souvenir de Solferino
o independent relief organizations should be established to
provide care to wounded soldiers on the battlefield >
founding of the ICRC (1863)
o an international agreement should be reached to grant
such organizations the protection of neutrality > First
Geneva Convention (1864)
• Instructions for the Government of Armies of the United States
in the Field (1863) – Lieber Code
• 1949 Geneva Conventions
Compiled by: MEV v.1 (01-18-21) 1

o the Convention for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field (First
Geneva Convention)
o the Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea (Second Geneva Convention)
o the Convention relative to the Treatment of Prisoners of
War (Third Geneva Convention)
o the Convention relative to the Protection of Civilian
Persons in Time of War (Fourth Geneva Convention).
• 1977 Additional Protocols
o Additional Protocol I: relating to the Protection of Victims
of International Armed Conflicts
o Additional Protocol II: relating to the Protection of
Victims of Non- International Armed Conflicts
3. Geneva Law and Hague Law

Law of Geneva Law of the Hague
body of rules which protect provisions which affect the
victims of war conduct of hostilities.
4. Main Sources
• Treaty Law
▪ Four 1949 Geneva Conventions, their Additional Protocols
I [IAC] and II [NIAC]
▪ Weapons treaties, such as the 1980 Convention on
Certain Conventional Weapons or the 2008 Convention on
Cluster Munitions.
▪ Common Article 3 and AP II for NIAC
• In the case of armed conflict not of an international
character occurring in the territory of one of the
High Contracting Parties, each Party to the conflict
shall be bound to apply, as a minimum, the
following provisions:
1) Persons taking no active part in the hostilities,

including members of armed forces who have laid
down their arms and those placed hors de combat
by sickness, wounds, detention, or any other cause,
shall in all circumstances be treated humanely,
without any adverse distinction founded on race,
colour, religion or faith, sex, birth or wealth, or any
other similar criteria.

To this end, the following acts are and shall remain
prohibited at any time and in any place whatsoever
with respect to the above-mentioned persons:
a) violence to life and person, in particular

murder of all kinds, mutilation, cruel
treatment and torture;
b) taking of hostages;
c) outrages upon personal dignity, in

particular humiliating and degrading
treatment;
d) the passing of sentences and the carrying

out of executions without previous judgment
pronounced by a regularly constituted court,
affording all the judicial guarantees which
are recognized as indispensable by civilized
peoples.
2) The wounded and sick shall be collected

and cared for.
An impartial humanitarian body, such as the

International Committee of the Red Cross, may
offer its services to the Parties to the conflict.
The Parties to the conflict should further

endeavour to bring into force, by means of special
agreements, all or part of the other provisions of
the present Convention.
The application of the preceding provisions

shall not affect the legal status of the Parties to the
conflict.
o The advantage of treaty IHL is that it is relatively

unambiguous. The scope of applicability of the treaty is defined
in the text itself, the respective rights and obligations are
spelled out in carefully negotiated provisions, which may be
supplemented with express reservations or understandings, and
the States Parties are clearly identified through the act of
ratification or accession.
• Custom

o State practice [usus] and psychological acceptance as law
[opinion juris]
o Advantage: it is a dynamic body of law constantly evolving in
tandem with State practice and legal opinion. Customary law
can therefore adapt much more quickly to new challenges and
developments than treaty law, any change or development of
which requires international negotiations followed by the formal
adoption and ratification of an agreed text.
o Disadvantage: It is not based on a written agreement and,
consequently, that it is not easy to determine to what extent a
particular rule has attained customary status. It also takes time
to develop (deliberateness and habituality as one of the
requisites for state practice)
• General Principles of law
o “the general principles of law recognized by civilized nations.”
o legal principles that are recognized in all developed national
legal systems, such as the duty to act in good faith, the right of
self-preservation and the non-retroactivity of criminal law.
▪ “elementary considerations of humanity,” which it held to
be “even more exacting in peace than in war.”
▪ Martens Clause - in cases not regulated by treaty law,
“populations and belligerents remain under the protection
and empire of the principles of international law, as they
result from the usages established between civilized
nations, from the laws of humanity and the requirements
of the public conscience.”
• Role of “soft law”
o Guidance on the interpretation of IHL can be given by the
States themselves as the legislators of international law. This
may take the form of unilateral reservations or declarations, or
resolutions of multilateral organizations, but also of support for
non-binding instruments.
o Absent such State-driven guidance, the task of interpreting IHL
falls, first and foremost, to international courts and tribunals
mandated to adjudicate cases governed by IHL, such as the ad
hoc international criminal tribunals established for specific
conflicts, the ICC and, of course, the ICJ. In addition, the
teachings of the most highly qualified publicists are also
recognized as a subsidiary means of determining the law.
B. When Does IHL Apply?

1. Jus ad bellum v. Jus in bello
Jus ad Bellum Jus in Bello

Def. Law governing the use of Law governing armed
force between States conflict (but see note
below)
Governing UN Charter IHL (GC I-IV, AP, Hague
law GR: Art 2(4) – Convention)
Prohibition on the threat
or use of force
X: Art. 51 – Individual or
collective self-defense
Art. 42 - Sanctioned by
the UNSC to maintain or
restore international
peace and security
• IHL is specifically designed to govern armed conflicts. IHL does not apply
to inter-State confrontations that fall short of armed conflict, or to
internal disturbances and tensions, such as riots, isolated and sporadic
acts of violence and similar acts not amounting to armed conflict.
• There are also obligations among states covered by IHL which apply sans
armed conflict:
o Weapons treaties prohibit use, development, stockpiling,
production, and sale of certain weapons; inspection by
international monitoring bodies
o IHL remains applicable to occupied territories after cessation of
active hostilities, until a political solution to their status is
arrived.
o State obligation for IHL training and dissemination,
investigation and prosecution of serious violation of IHL
o POWs or PDL for reasons of armed conflict are still protected by
IHL, until released, repatriated, or normalized.
2. Armed Conflict: International and Non-International
International Armed Non-International

Conflict [IAC] Armed Conflict
Def. Occurs between two or Occurs between States
more States and non-governmental
armed groups, or
between such groups
only.
See note 1 below
Threshold Any such use can be Higher threshold of
of legitimately presumed to violence is necessary
violence express belligerent See note 2 below.

intent and to create a
situation of international
armed conflict, which
must be governed by IHL
o Note 1: The incorporation of the concept of non- international

armed conflict in common Article 3 therefore constituted a
landmark in the development and codification of IHL. From that
moment on, organized armed groups were considered “parties” to an
armed conflict with their own obligations under international law,
irrespective of any formal recognition of belligerency by the
opposing State.
o Note 2: within their own territory, States must be able to use force
against groups or individuals for the purpose of law enforcement;
and the use of force by such groups or individuals against each
other or against governmental authorities generally remains a
matter of national criminal law.
o What is the justification for differentiating IAC from NIAC?
▪ This dichotomy between IAC and NIAC is a result of political
history rather than military necessity or humanitarian need.
▪ Governments have long been reluctant to subject their efforts
to maintain law and order and public security within their
territorial borders to the purview of international law.
• IAC
o Governed by: Hague Regulations of 1907, the four 1949 Geneva
Conventions and Additional Protocol I.
o Belligerent Parties:
▪ High Contracting Parties to the 1949 Geneva Conventions
▪ State Parties to AP I: certain types of national liberation
movements as “parties” to an international armed conflict
although they do not, at the time, qualify as sovereign States
under international law
o COMMON ARTICLE 2.1
▪ In addition to the provisions which shall be implemented in
peace-time, the present Convention shall apply to all cases of
declared war or of any other armed conflict which may
arise between two or more of the High Contracting
Parties, even if the state of war is not recognized by one of
them”
o COMMON ARTICLE 2.2

▪ “(…) to all cases of partial or total occupation of the
territory of a High Contracting Party, even if the said
occupation meets with no armed resistance.”
Problem
State A and State B share a common border with military camps
on each side. During routine military exercises warplanes of
State A made a miscalculation and fired missiles into State B’s
military camp. In response State B fired its own missiles into
State A’s camp. Is there an IAC?
o Nature of Confrontation (How existence is determined)

▪ States expressed their belligerent intent (animus
belligerendi) through formal declarations of war, which, ipso
facto, created a political state of war and triggered the
applicability of the law of war (jus in bello) between them,
even in the absence of open hostilities.
▪ Shift from war as a “political concept” to armed conflict as a
“factual concept”
• Armed conflict - presumed to exist In the absence of a
formal declaration of war, belligerent intent is derived
by implication from factual conditions rather than
from official recognition of a political state of war. The
existence of an IAC is determined, therefore, primarily
by what is actually happening on the ground.
▪ Belligerent intent remains an implied prerequisite for the
existence of an international armed conflict. This means that
the applicability of IHL cannot be triggered by merely
erroneous or accidental causation of harm, or by violence on
the part of individuals acting without the endorsement or
acquiescence of the State they represent.
▪ In the special case of national liberation movements, the
required threshold of violence may be more similar to that of
situations of non-international armed conflict, factual
concept.
Problem
On Monday, State A’s agents went into State B and assassinated
the Prime Minister of State B. On Tuesday, State B’s Congress
declared war on State A. On Wednesday, the UN asked both
states to de-escalate. But on Thursday, States A and B engaged
in open hostilities. When did the IAC begin?
o Temporal and territorial scope of IAC

▪ Temporal Scope
• An IAC starts with:
o Formal declaration of war
o Absence of declaration, actual use of armed
forces expressing belligerent intent OR the mere
fact of one State invading another with a view to
occupying all or part of its territory, even when
such invasion meets with no armed resistance.
Problem
On Monday, after years of fighting, the President of State A and
its Congress issued a joint declaration ending the war with State
B. On Tuesday, some fighting occurred among combatants who
did not hear about the declaration. On Wednesday, States A and
B signed a peace treaty ending the war. On Thursday, all fighting
ended. When did the IAC end?
• An international armed conflict ends with a:

o peace treaty or an equivalent agreement
o a unilateral declaration or other unambiguous
act expressing the termination of belligerent
intent, such as a capitulation, declaration of
surrender, or unconditional, permanent and
complete withdrawal from previously contested
territory.
• The decisive criterion must always be that the armed

confrontation between the belligerent parties has come
to a lasting end in circumstances that can reasonably
be interpreted as a general cessation of military
operations.
• The temporal scope of an international armed conflict
has to be distinguished from the temporal scope of
application of IHL rules related to those conflicts. The
fact that a conflict has ended does not preclude certain
aspects of IHL from continuing to apply even beyond
the end of the conflict.
Problem
States A and B are at war. The President of State A visited State
C to attend a conference. State B used a drone strike to kill the
president of State A while in his car in the business district of
State C. Are IHL rules applicable here?

▪ Territorial Scope
• The applicability of IHL cannot be limited to those
areas of belligerent States where actual combat takes
place, but that it extends to any act having a nexus to
the conflict (i.e. carried out for reasons related to the
conflict).
• Belligerent Occupation
o belligerent occupation occurs when one State invades another State
and establishes military control over part or all of its territory.
o Art 42, Hague Regulations: “Territory is considered occupied when
it is actually placed under the authority of the hostile army. The
occupation extends only to the territory where such authority has
been established and can be exercised.”
o “Effective control” - State’s factual ability to assume the de facto
governmental functions of an occupying power, most notably to
ensure public security, and law and order, and not by its
willingness to do so.
▪ Belligerent occupation can also exist when a foreign State
exerts overall control over local authorities who, in turn,
exercise their direct governmental control as de facto State
agents on behalf of the occupying power.
o Invasion Phase
▪ Pictet Theory - the Hague Regulations are based on a strictly
territorial notion of occupation, whereas the Fourth Geneva
Convention extends its protection to all individuals “who, at
a given moment and in any manner whatsoever, find
themselves, in case of a conflict or occupation, in the hands of
a Party to the conflict or Occupying Power of which they are
not nationals.”
▪
Others argue that, prior to the establishment of effective
territorial control, only those provisions of the Convention
that are “common to the territories of the parties to the
conflict and to occupied territories”apply
▪ Regardless of interpretation, Art. 3 and 75 of AP I apply.
o End of Occupation
▪ Withdrawal or Loss of Effective Control
• As long as the occupying power maintains its capacity
to regain military control of the territory at any time it
so desires, even hostilities of significant intensity or
temporary restrictions of its territorial control do not
terminate its status and obligations as an occupier
under IHL.
• as soon as the ability of the occupying power to impose
its military authority is effectively eliminated for any

length of time, the areas concerned can no longer be
regarded as occupied and the humanitarian
obligations of the former occupying power towards
their inhabitants are limited to those of any other
party to the conflict.
▪ Genuine consent to a foreign military presence
• The territorial State consents to the continued
presence of foreign armed forces, usually – but not
necessarily – given in conjunction with a full or partial
transfer of authority from the former occupier to the
local government.
• In order to be valid, such consent must be genuine and
cannot be based on a coerced agreement between the
occupying power and a local regime, which would de
facto stay under the control of the occupying power.
• NIAC
o Significance of Common Article 3 (CA 3)
▪ Identifies a number of key duties and prohibitions providing
a minimum of protection to all persons who are not, or who
are no longer, taking an active part in the hostilities. In
return, this “miniature Convention” must be applied “as a
minimum” by each party to any “armed conflict not of an
international character.”
o Effect of AP II on CA 3
▪ AP II (1977) develops and supplements CA 3
▪ The Protocol does not modify the conditions of application of
CA 3, but defines its own scope of application more
restrictively and, therefore, cannot serve as a generic
definition of NIAC.
o Advantage of Art 1, AP II over CA 3
▪ It provides an objective threshold of factual criteria at which
the existence of a NIAC can no longer be denied
▪ situations of “internal disturbances and tensions, such as
riots, isolated and sporadic acts of violence and other acts of
similar nature,” do not constitute armed conflicts.
o Parties to a NIAC
▪ CA 3 - does not necessarily have to involve a government; it
can also take place entirely between organized armed groups.
▪ Requirement for an NSAG to be a NIAC party
• No requirement of any recognition of belligerency by
the opposing State, nor popular support, territorial
control or political motivation.
• The concept of “party to an armed conflict”
presupposes a minimum level of organization without

which coordinated military operations and collective
compliance with IHL would not be possible.
o “Minimum level of organization”
▪ Ability to gain access to military
weapons, equipment, recruits, and
training
▪ Ability to plan, coordinate, and carry out
military operations, troop movements,
and logistics
▪ Ability to define a unified military
strategy and use military tactics
▪ Ability to speak with one voice and
negotiation and conclude agreements
such as ceasefires and peace accords
o Threshold of Intensity
▪ Situation of “protracted armed violence” between a State and
organized armed groups or between such groups, a criterion
that in practice has been interpreted as referring more to the
intensity of the armed violence than to its duration.
▪ Indicative factors include:
• Number, duration and intensity of individual
confrontations;
• Type of weapons and other military equipment used;
• Number and caliber of munitions fired;
• Number of persons and type of forces partaking in the
fighting;
• Number of casualties;
• Extent of material destruction; and
• Number of civilians fleeing combat zones
• UN involvement
o Temporal factors
Problem
On Monday the PLA was formed. On Tuesday, the PLA launched
attacks on government buildings. On Wednesday, the
government described these acts as mere acts of violence by
bandits. On Thursday, the PLA attached a military camp. On
Friday, the government declared a state of war with the PLA.
When did the NIAC start?
▪ When does NIAC start and end?

• START: As soon as armed violence occurring between
sufficiently organized parties reaches the required
threshold of intensity

• END: IHL applies until “a peaceful settlement is
achieved.” (Prosecutor v. Tadic)
• Armed Conflicts Subject to Foreign Intervention

o Nature and character
▪ A special form of armed conflict sometimes also less
accurately referred to as “internationalized” armed conflicts.
▪ Refers to a State, or coalition of States, intervening in a pre-
existing NIAC, thereby becoming a (co-belligerent) party to
that conflict.
Problem
If State B sends military and equipment to the PLA to fight
against State A. Is it a NIAC or IAC?
o When an “internationalized conflict” is classified as IAC or NIAC
If.. IAC NIA

C
Foreign state intervenes in support of the X
territorial State’s struggle against an insurgency
Foreign State supports the insurgency against the
territorial State:
Armed confrontations between the X
Foreign State and the Territorial
State
Armed confrontations between the X
territorial state and the insurgency
Foreign State not only supports but also actually X
directs and controls the insurgent party to the
point that its operations are regarded as those of
the foreign state itself.

Module II
Conduct of Hostilities
Melzer’s Maxims:
1. The only legitimate object which States should endeavor to
accomplish during war is to weaken the military forces of the enemy (St.
Petersburg Declaration)
2. In pursuing this aim, “the right of the Parties to the conflict to choose
methods or means of welfare is not unlimited”
3. Civilian population and individual civilians (including objects) shall
enjoy general protection against dangers arising from military
operations
GOAL of IHL:
1. Ensure protection of civilian population and objects from effects of
hostilities
2. Improve constraints on the means and methods of warfare
REMEMBER: DISTINCTION -> PROPORTIONALITY -> PRECAUTION
A. Distinction
1. Civilian v. combatant
• Who are combatants?
o In IAC, all members of the armed forces are considered as
combatants, except medical and religious personnel assuming
exclusively humanitarian functions
o Weapon-bearers who are regarded as combatant without being
members of the armed forces are participants in an levee en
masse
▪ Levee en masse - inhabitants of a non-occupied territory
who , on the approach of the enemy, spontaneously take
up arms to resist the invading forces without having had
time to form themselves into a regular armed units,
provided they carry arms openly and respect the laws and
customs of war
▪ A sustained, continuous, and organized levee en masse
will be treated as an organized armed movement, not
anymore a levee en masse.
▪ All others who take a direct part in hostilities on a merely
spontaneous, sporadic or unorganized basis must be
regarded as civilians
▪ Individual involvement in a levee en masse is based on
spontaneous and unorganized “participation” in
hostilities, and not on membership, which would imply a
minimum of continuity and organization.

▪ Participants in a levee en masse have combatant status
based on their immediate conduct, and that their loss of
protection against direct attack must be determined based
on the same criteria that apply to civilian directly
participating in hostilities
o Persons fighting outside these categories, such as mercenaries
or civilians taking a direct part in hostilities, are not entitled to
combatant status.
• Membership in the armed forces
o All organized armed forces, groups and units which are under a
command responsible to that Party for the conduct of its
subordinates. [AP I, Art. 43(1); CIHL, Rule 4.]
o Groups or units showing a sufficient degree of military
organization and belonging to a party to a conflict must be
regarded as part of the armed forces of that party
o When membership ceases:
▪ Disengages from active duty and returns to civilian life
• Whether after being discharged from duty, or
• Deactivated reservist
• Consequence of Combatant Status
o Loss of civilian status and of protection against direct attack
o Combatant privilege
▪ Right to participate directly in hostilities” on behalf of
party to an IAC.
▪ Becomes relevant for the status and rights afforded to an
individual after capture by the enemy
• Once captured, combatant is entitled to POW
status
▪ Only exclusive in IAC, not provided for in NIAC
• NOTE: within NIACs there is no clear definition
of “combatant”. There is not regular combatant
status, the possession of which gives rise to
combatant immunity and the secondary status of
POW. In NIAC governmental forces confront rebel
armed groups. If captured, rebels may be treated as
criminals… if rebels capture members of the armed
forced, there are no rules of law of armed conflict
(LOAC) that apply to their treatment… this is a
matter which often gives rise to the conclusion of ad
hoc special agreements, which attempt to give some
legal status (K&H, 205)
• Not entitled to combatant privilege
o Members of armed forces failing to distinguish themselves from
the civilian population

o Mercenaries, private contractors, civilian intelligence agents,
organized criminals, other civilians – may directly participate in
hostilities without being entitled to the privilege
▪ Mercenaries (AP I, Art. 47)
• Is specially recruited locally or abroad to fight in an
armed conflict
• Does in fact, take a direct part of hostilities;
• 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 promise or paid to combatants of
similar ranks and functions in the armed forces of
that party
• Is neither a national of a Party to the conflict nor a
resident of territory controlled by a Party to the
conflict;
• Is not a member of the armed forces of a Party to
the conflict;
• 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
▪ Private contractors (GC III, Art. 4(4)
• Persons who accompany the armed forces without
actually being members of thereof, such as civilian
members of military aircraft crews, war
correspondents, supply contractors, members of
labour units or of services responsible for the
welfare of the armed forces, provided that they
have received authorization from the armed forces
which they accompany, who shall provide them for
that purpose with an identity card similar to the
annexed model
▪ Unprivileged or unlawful combatants
• Civilians directly participating in hostilities and
others supporting the enemy’s war effort without
being entitled to the privilege of combatancy.
• It must be emphasized, however, that neither
“unprivileged” nor “unlawful” combatant is a term
used in IHL, and that neither entails any status or
loss of protection in derogation of the categories
and rules already foreseen IHL
• A person’s loss of protection against direct attack
can never be the result of his or her informal

categorization as an “unprivileged” or “unlawful”
combatant, but must always be based on his or her
membership in the armed forces of a belligerent
party …or, in the case of civilian, his or her direct
participation in hostilities…within the meaning of
IHL
• While the term “unprivileged combatant” arguably
may be used in a purely descriptive manner for
members of the armed forces who have lost their
entitlement to the privilege of combatancy, it
should never be used to refer to persons who are
protected against direct attack, or who may only
lose such protection on a temporary basis, such as
civilians directly participating in hostilities and
others supporting the enemy without becoming
part of its fighting forces (NOTE: a new term that
came about after 9/11, to justify US action on
suspected terrorists)
• Who are civilians?
o Defined in the negative: all persons who are NEITHER
▪ Members of the armed forces to a party of the conflict
▪ Members of a levee en masse
o CIHL Rule 5: Civilians are those who are not members of the
armed forces. Civilian population comprises all persons who are
civilians.
o PRESUMPTION: If there is a doubt about a person’s civilian
status, that person must be considered a civilian
• Principle of distinction
o What is prohibited?
▪ Direct Attack
• What are attacks? Refers not only to offensive
operations, but also includes all “acts of violence
against the adversary, whether in offence or in
defence”
▪ Acts of Terror
• Acts or threats of violence the primary purposed of
which is to spread terror among civilian population
▪ Indiscriminate attack
• Attacks which are of a nature to strike military
objectives and civilians and civilian objectives
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
▪ Human Shields
• Use of the presence or direct movement of the
civilian population or individual civilians in order
to attempt to shield military objectives from attack,
or to shield, favour, impede military operations
o Equality of Belligerents - A State exercising its right to self-
defence or rightfully trying to restore law and order within its
territory must be as careful to comply with IHL as an aggressor
State or a non-State armed group having resorted to force in
violation of international or national law, respectively.
o Common Article 1 - Principle of Non-reciprocity of humanitarian
obligations – violation of the prohibition by the enemy does not
release belligerent parties from their own obligations with
respect to the civilian population
• Civilian participation in hostilities
o Civilians are entitled to protection against direct attacks “unless
and for such time as they take a direct part in hostilities” [AP I,
Art. 51(3); CIHL, Rule 6.]
o For the duration of their direct participation in hostilities,
civilians may be directly attacked as if they were combatants
▪ Hostilities, defined
• the collective recourse by belligerent parties to
means and methods of warfare
▪ Participation, defined
• Individual involvement of a person in these
hostilities may be described as “direct” or “indirect”
o Direct - specific hostile acts carried out as
part of the conduct of hostilities between
parties to an armed conflict and leads to loss
of protection against direct attack
o Indirect - May contribute to the general war
effort, but does not directly harm the enemy
and therefore does not entail loss of
protections against direct attacks
• Requisites for direct participation
o Threshold of harm - Harm likely to result
from the act must be either military in
nature or involve death, injury or destruction
o Direct causation - Must be direct causal
relation between the act and the expected
harm

o Belligerent nexus - act must be an integral
part of the hostilities occurring between
parties to an armed conflict and must,
therefore, aim to support one belligerent
party to the detriment of another
• Direct participation should be interpreted as
referring to acts designed to support a belligerent
party by directly harming its enemy, either by
directly causing military harm or by directly
inflicting death, injury or destruction on persons or
object protected against direct attack.
• Indirect support
o Fact that civilian support for the enemy does
not amount to direct participation in
hostilities does not mean that such support
is necessarily lawful, or that no measure can
be taken to prevent, suppress or punish such
support
o Use of force against civilians giving indirect
support
▪ Must comply with the more restrictive
rules of the law enforcement paradigm
▪ The law enforcement paradigm allows
the use of lethal force only in order to
protect human life from an unlawful
attack, and only as a last resort when
other available means remain
ineffective without any promise of
achieving the intended result.
2. Civilian objects v. military objectives

• Civilian objects – all objects that are not military objects
• Military objectives
o 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 at the time, offers a definite military advantage
o Two-pronged test:
▪ It must contribute effectively to the adversary’s military
action (as opposed to mere policy objectives or the war
sustaining capabilities of the enemy), and it has to do so
by its “nature” (e.g. intrinsically military characteristics
of weaponry), “location” (e.g. physical obstacle impeding

military operations), “purpose” (e.g. intended future use of
ammunition factory under construction) or current use.
▪ An object making an effective contribution to the enemy’s
military action can qualify as a military objective only if
its destruction, capture, or neutralization also offers the
attacker a definite military advantage. It follows from the
word “definite” that the advantage must be concrete and
perceptible and not merely hypothetical or speculative
o Determination of military advantage
▪ Any attack being contemplated must offer a definite
military advantage “ in the circumstances ruling at the
time”
o Civilian objects as military objective
▪ YES. Military objective defined as such because of their
use regain civilian status as soon as they no longer make
an effective contribution to the enemy’s military action or
an attack against them no longer offers a definite military
advantage
o Presumption
▪ Any doubt as to whether an object normally used for
civilian purposes, such as a place of worship, a house or
other dwelling or a school, is being used to make an
effective contribution to military action, it is presumed
not to be so used.
o Civilian objects as subjects of attack
▪ Attacks must be limited to military objectives and that
civilian objects may not be the object or attacks or
reprisals.
o Dual-use objects as military objectives (objects both civilian and
military)
▪ To the extent that a specific object makes an “effective
contribution” to the enemy’s military action and its
destruction, neutralization or capture offers a definite
military advantage, it qualifies as a military objective
regardless of its simultaneous civilian use
o Specially-protected objects
▪ Cultural properties
• Definition: Comprising essentially any secular or
religious movable or immovable property of great
importance to the cultural heritage of all people,
such as monument of architecture or history,
archeological sites, works of art, books, museums,
and libraries and other buildings containing
cultural property

•Obligations
o Belligerent parties must safeguard their own
cultural property against the foreseeable
effects of armed conflict; and
o They must respect all cultural property,
whether their own or that situated in the
territory of other states
o They may not directly any act of hostility
against cultural property and must refrain
from using such property for purposes likely
to expose it to destruction or damage in the
event of armed conflict
• Derogation of obligations
o ALLOWED: only in cases of imperative
military necessity and if there is no feasible
alternative available to obtain a similar
military advantage
o In no case, however, may cultural property
be attacked UNLESS it has, by its function,
been turned into a military objective.
Moreover, any such attack must be ordered
by a commanding officer and, whenever
circumstances permit, preceded by an
effective advance warning. (Example:
becomes a staging area)
▪ Works and installations containing dangerous forces
• Definition: certain installations, namely dams,
dykes and nuclear stations, are specially protected
from attack because of their partial or total
destruction would likely be catastrophic
humanitarian consequences for the surrounding
civilian population and objects
• Even dams, dykes and nuclear stations that qualify
as military objectives, as well as other military
objectives located in their vicinity must not be
attacked if such attack can cause the release of
dangerous forces and consequent severe losses
among the civilian population
• Becomes Military Object IF: Used in regular,
significant and direct support of military operations
and if such attack is the only feasible way to
terminate such support
• If special protection ceases and such works,
installations or neighboring military objectives are

attacked, in addition to the precautionary
measures required by the general rules on the
conduct of hostilities, all practical precautions must
be taken to avoid the release of dangerous forces
▪ Objects indispensable to the survival of the civilian
population
• Prohibited to attack, destroy, remove or render
useless objects indispensable to the survival of the
civilian population (food stuff, agricultural areas,
crops, livestock, drinking water, irrigation system)
for the specific purpose of denying them 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 any other motive.
• Becomes valid military objective IF: such objects
are used exclusively as sustenance for the opposing
armed forces, or otherwise in direct support of
military action, unless action taken against them
may be expected to starve the population or force
its movement
• Belligerent party may derogate from these
prohibitions only where required by imperative
military necessity for the defense of its national
territory against invasion, and only within territory
under its own control
• On blockades
o The prohibition of starvation as a method of
warfare does not prohibit sieges, naval
blockades and embargoes that cause
starvation as long as the purpose is to
achieve military objective and not starve a
civilian population
o The prohibition of starvation implies that the
besieging party must either allow the
inhabitants to leave the area on question or
permit the free passage of humanitarian
relief supplies
▪ Natural environment
• Environment is treated as a civilian object, unless
it meets all the constitutive requirements of a
military objective.
• Obligations: Belligerent parties must protect the
natural environment against “widespread, long-
term and severe damage” and prohibits the use of

method or means of warfare intended or maybe
expected to cause such damage to the natural
environment and thereby to prejudice the health or
survival of the population
B. Proportionality [AP I, Arts 51(5)(b) and 57(2)(a)(iii) and (b); CIHL, Rules 14,
18 and 19.]
• Concept: Prohibits attacks “which may be expected to cause incidental loss of
civilian life, injury to civilians, damage to civilian objects or a combination
thereof, which would be excessive in relation to the concrete and direct
military advantage anticipated”
• Proportionality evaluation is relevant only when the attacks are directed
against lawful targets
• Formula involves the loss of human lives vis-à-vis the military advantage
achieved from the attack
• When is an attack excessive?
o Requirement of proportionality is absolute, standard of excess is
relative
o IHL does not establish an objective threshold above which the
infliction of incidental harm would always be excessive
o In principle, targets with a comparatively high military values (high
value targets) will justify a greater incidental harm that targets with a
comparatively low military value (low value targets)
C. Precautions
• Duty to exercise precaution
o This applies to both the attacking party to the conflict:
▪ Precaution in attack – attacking party must do everything
feasible to avoid erroneous targeting or incidental harm as a
result of its own operations [AP I, Art. 57(1); CIHL, Rule 15.]
▪ Precaution against the effects of attack – attacked party must
take all necessary measures to protect the civilian population
under its control from the effects of attacks carried out by the
enemy [AP I, Art. 58; CIHL, Rule 22. ]
• Distinction between Precaution and Proportionality
o During all phases of an attack, the principle of precautions in attack
must be applied in conjunction with, but also independently of
principle of proportionality
o Even if (the attack is proportional) the attacking party must take all
the feasible precautions to choose means and methods of warfare that
will avoid as much incidental harm to civilian as possible
• Precautionary measures BEFORE an attack

o Those who plan and decide on an attack must do everything feasible to
ascertain that the selected targets are military objectives and that IHL
does not otherwise prohibit attacks against them
o Those who plan or decide an attack must also do everything feasible to
assess whether that attack may be expected to cause excessive
incidental harm and, if so, refrain from launching it. [AP I, Art.
57(2)(a)(iii); CIHL, Rules 14 and 18.]
o All belligerents have a duty to give effective advance warning of
attacks that may affect the civilian population, unless circumstances
do not permit (e.g. where the success of an attack depends on the effect
of surprise)
o Where a choice is possible between several military objectives for
obtaining a similar military advantage, belligerents must direct their
attack against the objectives which may be expected to involve the
least danger to civilians and civilian objects.
• Precautionary measure DURING an attack [AP I, Art. 57(2)(b); CIHL, Rule
19.]
o Even after an attack has commenced, it must be canceled or suspended
should it become apparent that:
▪ The target was mistakenly regarded as a military objective
▪ it no longer qualifies as a military objective
▪ That the incidental harm which may be expected result from the
ongoing attack is more significant – or the military advantage
less important – than anticipated
• Precautionary measures against the effects of attack
o Belligerents have a duty to:
▪ To the maximum extent feasible, to avoid locating military
objectives within or near densely populated areas
▪ To remove the civilian population, individual civilians and
civilian objects under their control from the vicinity of military
objectives
• Feasible precautions
o Definition: Those precautions which are practicable or practically
possible taking into account all circumstance ruling at the time,
including humanitarian and military considerations
o Factors of feasibility
▪ Available intelligence
▪ Level of territorial control
▪ Precision of available weapons
▪ Urgency of military action and
▪ Costs and risks associated with additional precautionary
measures

Module III
Means and Methods of Warfare
A. Basic Rule
• AP I, Art. 35 (1) - In any armed conflict, the right of the Parties to the conflict
to choose methods or means of warfare is not unlimited.
• Means of warfare – extensive body of rules prohibiting or regulating the
development, possession, and use of certain weapons
• Methods of warfare – prohibiting or restricting the ways in which such
weapons can be used OR hostilities can be conducted
B. Prohibited or restricted use of weapons (Means of warfare)
o St. Petersburg Declaration

▪ That the only legitimate object (…) during war is to weaken the
military forces of the enemy;
▪ That for this purpose it is sufficient to disable the greatest
possible number of men;
▪ That this object would be exceeded by the employment of arms
which uselessly aggravate the sufferings of disabled men, or
render their death inevitable;
▪ That the employment of such arms would, therefore, be contrary
to the laws of humanity.
o Prohibition against superfluous injury and unnecessary suffering
▪ AP I, Art. 35 (2) - It is prohibited to employ weapons, projectiles
and material and methods of warfare of a nature to cause
superfluous injury or unnecessary suffering.
▪ CIHL Rule 70 - The use of means and methods of warfare which
are of a nature to cause superfluous injury or unnecessary
suffering is prohibited.
▪ Hague Regulations Art. 23(e) - It is especially forbidden…[t]o
employ arms, projectiles, or material calculated to cause
unnecessary suffering.
Problem
State A is engaged in a NIAC with NSAG. State A uses high tech
weaponry with advanced targeting systems that guarantee a 90%
kill rate (9 out of 10 targets are hit with a fatal shot). NSAG X is
technology averse and uses swords, knives, arrows, shurikens
and various bladed weapons hand to hand fighting. Which of the
two groups is more likely to violate the St. Petersburg
Declaration or the prohibiting against superfluous injury and
unnecessary suffering? Why?

o When is suffering unnecessary or injury superfluous?
▪ Sans any distinct treaty criteria, the rule requires that a balance
be struck between considerations of military necessity and of
humanity.
▪ (Commentary) Prohibition refers to the effect of a weapon on
combatants. States generally agree that suffering that has no
military purpose violates this rule. Many states point out
that…excessive injury or suffering i.e. that which is out of
proportion to the military advantage sought, therefore violates
the rule…Some States also refer to the availability of alternative
means as an element that has to go into the assessment of
whether a weapon causes unnecessary suffering or superfluous
injury
1. Types of bullets
• Exploding Bullets
o Definition - bullets that are designed to explode upon impact
with the human body; projectiles weighing less than 400 grams
that are either explosive or charged with “fulminating or
inflammable substances.”
o Rule 78 CIHL - The anti-personnel use of bullets which explode
within the human body is prohibited.
• Expanding Bullets
o Rule 77 CIHL - The use of bullets which expand or flatten easily
in the human body is prohibited.
o Hague Regulations Art. 8(2)(b)(xix) - “War crime of employing
prohibited bullets.” The bullets were such that their use violates
the international law of armed conflict because they expand or
flatten easily in the human body.”
o Allowance of expanding bullets in law enforcement
▪ Expanding bullets generally do not pass through the body
of a targeted suspect and therefore make incidental injury
to innocent bystanders less likely.
▪ The greater stopping effect of expanding bullets increases
the chance of immediate incapacitation.
▪ The expanding bullets used in law enforcement operations
are generally fired from pistols and carry much less
energy than rifle bullets, thus resulting in significantly
lighter wounds.
Problem
What is more humane, a bullet that explodes and instantly kills
upon impact or a bullet that incapacitates (i.e. target cannot
move) unless helped?

o Non-detectable fragments
▪ Rule 79 CIHL - The use of weapons the primary effect of
which is to injure by fragments which are not detectable
by X-rays in the human body is prohibited.
▪ Reason for prohibition: Non-detectable fragments make it
extremely difficult to treat the resulting injuries but
entail no military utility and that, therefore, they have to
be regarded as inflicting unnecessary suffering.
▪ Limitation:
• Only to weapons whose “primary effect” is to injure
by non-detectable fragments
• Weapons that may incidentally cause the same
effects, such as bombs or ammunition containing
plastic or glass components as part of their design,
are not illegal if the non-detectable fragments are
produced incidentally and are not part of the
primary injuring mechanism.
2. Certain conventional weapons
• Landmines
o Definition – Art 2(2), Anti-Personnel Mine Ban Convention - A
munition designed to be placed under, on or near the ground or
other surface and to be exploded by the presence, proximity or
contact of a person or a vehicle.
o Anti-personnel mine - a mine designed to be exploded by the
presence, proximity or contact of a person and that will
incapacitate, injure or kill one or more persons. Mines designed
to be detonated by the presence, proximity or contact of a vehicle
as opposed to a person, that are equipped with anti-handling
devices, are not considered anti-personnel mines as a result of
being so equipped.
Problem
State A is engaged in a NIAC with NSAG X. The latter placed
anti-personnel landmines around its main base. NSAG X placed
warning signs and fences around the minefield. If civillians or
combatants are injured by the landmines, is IHL violated?
o Prohibition: 1997 Anti-Personnel Mine Ban Convention, which
is adhered to by the vast majority of States, completely bans the
use, development, production, acquisition, stockpiling, retention
or transfer of anti-personnel mines.
▪ If not a party to the 1997 Anti-Personnel Mine Ban
Convention, what will govern is the Convention on
Certain Weapons

• It is prohibited to use weapons to which this Article
applies in any city, town, village, or other area
containing a similar concentration of civilians in
which combat between ground forces is not taking
place or does not appear to be imminent, unless
either:
(a) they are placed on or in the close vicinity
of a military objective belonging to or under
the control of an adverse party; or
(b) measures are taken to protect civilians
from their effects, for example, the posting of
warning signs, the posting of sentries, the
issue of warnings or the prohibition of fences.
o CIHL on Landmines
▪ Rule 81 - When landmines are used, particular care must
be taken to minimise their indiscriminate effects.
▪ Rule 82 - A party to the conflict using landmines must
record their placement, as far as possible.
▪ Rule 83 - At the end of active hostilities, a party to the
conflict which has used landmines must remove or
otherwise render them harmless to civilians, or facilitate
their removal.
• Incendiary weapons
o Any weapon or munition which is primarily designed to set fire
to objects or to cause burn injury to persons through the action
of flame, heat, or combination thereof, produced by a chemical
reaction of a substance delivered on the target.
o The category does not include munitions with merely incidental
incendiary effects (e.g. illuminants, tracers, smoke or signaling
systems). Also excluded are munitions “designed to combine
penetration, blast or fragmentation effects with an additional
incendiary effect.”
• Blinding laser weapons
o Laser weapons specifically designed, as their sole combat
functions, to cause permanent blindness (i.e. irreversible and
uncorrectable loss of vision, that is, to the naked eye or to the
eye with corrective eyesight devices.)
o Prohibited, except:
▪ Laser systems with an incidental blinding effect, such as
certain target recognition or munition guidance systems,
and weapons designed to blind temporarily (so-called
“dazzling lasers”)
• When using such permitted laser systems,
belligerent parties must take all feasible

precautions to avoid causing permanent blindness
to unenhanced vision.
• Cluster Munitions
o Definition: Weapons that are dropped from aircraft, or fired by
artillery, mortars, rockets and missiles, and subsequently
release large numbers of explosive submunitions. These
explosive submunitions are generally free-falling and scatter
over very wide areas.
o Prohibited: Conventional munitions designed to disperse or
release explosive submunitions of less than 20 kilograms each.
▪ Excluded:
• munitions designed to dispense flares, smoke,
pyrotechnics or chaff
• munitions that produce electrical or electronic
effects,
• munitions whose function of which is limited to air
defense.
• munitions containing less than ten explosive
submunitions of more than four kilograms each.
3. Chemical weapons and poison

• Poison
o Prohibition on the use of poison
▪ Hague Regulations, Art. 23(a) - It is especially
prohibited..[t}o employ poison or poisoned weapons
▪ Rome Statute, Art. 8(2)(b)(xvii) - War crime of employing
poison or poisoned weapons
▪ CIHL Rule 72 - The use of poison or poisoned weapons is
prohibited.
o Definition
▪ ICJ - these terms “have been understood, in the practice
of States, in their ordinary sense as covering weapons
whose prime, or even exclusive, effect is to poison or
asphyxiate.”
▪ Rome Statute - the material element of the war crime of
employing poison or poisoned weapons requires the use of
a substance “that causes death of serious damage to
health in the ordinary course of events, through its toxic
properties.
▪ The prohibition is not considered to apply to weapons
with a merely incidental poising effect, but only to
weapons that are actually designed to kill or injure by the
effect of poison.
• Chemical weapons

o Definition
▪ toxic chemicals and their precursors, except where
intended for purposes not prohibited,” munitions
exclusively designed for the delivery of toxic chemicals
and other equipment designed for use with such
munitions.
▪ Chemical Weapons Convention, Art. 2.1. –
• Toxic chemicals and their precursors, except where
intended for purposes not prohibited under this
Convention, as long as the types and quantities are
consistent with such purposes;
• Munitions and devices, specifically designed to
cause death or other harm through the toxic
properties of those toxic chemicals specified in
subparagraph (a), which would be released as a
result of the employment of such munitions and
devices;
• Any equipment specifically designed for use
directly in connection with the employment of
munitions and devices specified in subparagraph
o Prohibition:
▪ CIHL Rule 74 - The use of chemical weapons is
prohibited.
▪ Chemical Weapons Convention, never in any of the
following:
• To develop, produce, otherwise acquire, stockpile or
retain chemical weapons, or transfer, directly or
indirectly, chemical weapons to anyone;
• To use chemical weapons;
• To engage in any military preparations to use
chemical weapons.
o Riot-Control Agents
▪ CIHL Rule 75 - The use of riot-control agents as a method
of warfare is prohibited.
▪ Chemical Weapons Convention, Art. 1.5 - Each State
Party undertakes not to use riot control agents as a
method of warfare.
4. Bacteriological and biological weapons

• Definition – Biological Weapons Convention
o Microbial or other biological agents, or toxins whatever their
origin or method of production, of types and in quantities that
have no justification for prophylactic, protective or other
peaceful purposes;

o Weapons, equipment or means of delivery designed to use such
agents or toxins for hostile purposes or in armed conflict.
• Weapon of mass destruction
o (Detter, 266) - The General Assembly has reiterated this
expanded notion of weapons of mass destruction defining such
weapons as “atomic explosive weapons, radioactive material
weapons, lethal chemical and biological weapons…”
5. Nuclear weapons
• IHL does not expressly ban the use of nuclear weapons in armed
conflicts
• In its 1996 Advisory Opinion, the ICJ concluded that the use of nuclear
weapons would be “generally contrary” to the principles and rules of
IHL, but was unable to “reach a definitive conclusion as to the legality
or illegality of the use of nuclear weapons by a State in an extreme
circumstance of self-defence, in which its very survival would be at
stake.”
6. New means and methods

Problem
State A and State B are engaged in an IAC. State A placed
autonomous weapons systems (AWS) along its border with State
B. The AWS has the ability to distinguish between combatant
and civilian with 99.9% accuracy. It is programmed to fire three
warning shots before firing lethal shot. If the warning is not
heeded then a lethal shot is fired with 100% accuracy. Is this
weapon compliant with IHL?
Guide Questions:
• Would already be prohibited under a specific weapons treaty;
• Would constitute an indiscriminate weapons;
• Would be of a nature to cause superfluous injury or unnecessary
suffering, or widespread, long-term and severe damage to the
natural environment;
• Would contradict the “principles of humanity” or “public
conscience” (Martens Clause).
• Cyberoperations
o Advantages/Disadvantages
▪ Advantage: potential to enable parties to armed
conflicts to achieve their military aims without
harming civilians or causing physical damage to
civilian infrastructure.

▪ Disadvantage: Sophisticated actors have developed the
capability to disrupt the provision of essential services
to the civilian population.
o Effects
▪ Infiltrate a system and collect, exfiltrate, modify,
encrypt, or destroy data.
▪ Trigger, alter or otherwise manipulate processes
controlled by a compromised computer system.
▪ Variety of “targets” in the real world can be disrupted,
altered, or damaged, such as industries,
infrastructures, telecommunications, transport, or
governmental and financial systems.
o Escalation
▪ Cyber operations entail a risk for escalation and
related human harm for the simple reasons that it
may be difficult for the targeted party to know
whether the attacker’s aim is intelligence collection or
more harmful effects. The target may thereby react
with greater force than necessary out of anticipation of
a worst-case scenario.
C. Prohibited Methods
• Hors de combat
o Definition
▪ In the power of an adverse party;
▪ Clearly expresses an intention to surrender or is
incapable of defending himself or herself because of
unconsciousness, shipwreck, wounds or sickness, and,
▪ In all those cases, abstains from any hostile act and
does not attempt to escape. ] AP I, Art. 41(1) and (2);
CIHL, Rule 47. ]
o Protection
▪ It is prohibited to attack persons who are recognized or
who in the circumstances, should be recognized as
being hors de combat.
▪ The protection of persons hors de combat ceases as
soon as they commit a hostile act or attempt to escape.
1. Giving or ordering no quarter
• CIHL Rule 46 - Ordering that no quarter will be given, threatening
an adversary therewith or conducting hostilities on this basis is
prohibited.
• The prohibition of denial of quarter makes it illegal to deliberately
refuse or render impossible an enemy’s surrender or to put to death
those who are hors de combat.

• While all those who take a direct part in hostilities must respect
this rule, in practice it will be particularly relevant for
commanders.
• The prohibition against denial of quarter does not prevent
belligerents from resorting to surprise attacks or from employing
units and weapon systems that are incapable of taking prisoners.
However, methods calculated to ensure the complete extermination
of the opposing forces, including the wounded and sick and those
attempting to surrender, would definitely breach the prohibition
against denial of quarter.
2. Perfidy v. Permissible ruses of war

• Perfidy - PROHIBITED
o Definition – AP I, Art. 37(1) - Acts inviting the confidence of an
adversary to lead him to believe that he is entitled to, or is
obliged to accord, protection under the rules of international law
applicable in armed conflict, with intent to betray that
confidence, shall constitute perfidy.
o Examples – AP I, Art. 37(1)
▪ the feigning of an intent to negotiate under a flag of truce
or of a surrender;
▪ the feigning of an incapacitation by wounds or sickness;
▪ the feigning of civilian, non-combatant status; and
▪ the feigning of protected status by the use of signs,
emblems or uniforms of the United Nations or of neutral
or other States not Parties to the conflict.
o Prohibitions:
▪ AP I, Art. 37(1) - kill, injure or capture an adversary by
resort to perfidy
▪ CIHL Rule 65 - Killing, injuring or capturing an
adversary by resort to perfidy is prohibited.
▪ Hague Regulations, Art. 23(b) - • It is especially
forbidden…To kill or wound treacherously individuals
belonging to the hostile nation or army
o When not applicable
▪ Carrying our operations that depend on the element of
surprise, such as uniformed commando raids and attacks
from camouflaged positions or properly marked stealth
bombers.
▪ Mere intelligence gathering by undercover units disguised
as civilians. If captured, however, such personnel could be
prosecuted as spies under the domestic legislation of the
capturing State.
• Ruses of War - ALLOWED

o Definition – AP I, Art. 37(2) - 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.
o Examples – AP I, Art. 37(2)
▪ Use of camouflage
▪ Decoys
▪ Mock operations
▪ Misinformation
Problem
State A and State B are engaged in an IAC. Han and Luke,
agents of State A, infiltrated the base of State B and stole
uniforms of State B soldiers. Is IHL violated if they use the
uniforms to gain access to disable the base defenses?
• Emblems of adverse or neutral party

o AP I, Art. 39 (1) - It is prohibited to make use in an armed
conflict of the flags or military emblems, insignia or uniforms of
neutral or other States not Parties to the conflict.
▪ CIHL Rule 63 - Use of the flags or military emblems,
insignia or uniforms of neutral or other States not party
to the conflict is prohibited.
o AP I, Art. 39 (2) - It is prohibited to make use of the flags or
military emblems, insignia or uniforms of adverse Parties while
engaging in attacks or in order to shield, favour, protect or
impede military operations.
o AP I, Art. 39 (3) - Nothing in this Article or in Article 37,
paragraph 1 d), shall affect the existing generally recognized
rules of international law applicable to espionage or to the use of
flags in the conduct of armed conflict at sea.
3. Starvation of civilians
• AP I, Art. 54 (1) - Starvation of civilians as a method of warfare is
prohibited.
• CIHL Rule 53 - The use of starvation of the civilian population as a
method of warfare is prohibited.
• Refer to Module II discussion on specially protected objects
D. Cyber Warfare
• Advantages/Disadvantages

o Advantage: potential to enable parties to armed conflicts to
achieve their military aims without harming civilians or
causing physical damage to civilian infrastructure.
o Disadvantage: Sophisticated actors have developed the
capability to disrupt the provision of essential services to the
civilian population.
• Effects
o Infiltrate a system and collect, exfiltrate, modify, encrypt, or
destroy data.
o Trigger, alter or otherwise manipulate processes controlled
by a compromised computer system.
o Variety of “targets” in the real world can be disrupted,
altered, or damaged, such as industries, infrastructures,
telecommunications, transport, or governmental and
financial systems.
• Escalation
o Cyber operations entail a risk for escalation and related
human harm for the simple reasons that it may be difficult
for the targeted party to know whether the attacker’s aim is
intelligence collection or more harmful effects. The target
may thereby react with greater force than necessary out of
anticipation of a worst-case scenario.

Module IV
IHL and Islam
A. Origins of Islamic Law of War
• Sources
o Primary (Agreed-upon sources)
▪ Qur’an
▪ Sunnah (tradition)
▪ Ijmā’ (legal literature representing consensus of opinion)
▪ Qiyās (rule of analogy developed via deductive reasoning)
o Secondary (disputed sources)
▪ istihsān (juristic/public preference)
▪ Maslah ah musalah (public interest)
▪ ‘urf (custom)
▪ shar’ man qablana (sharī’ahs of religions before Islam)
▪ Madhhab al-sahabī (opinions of the Companions of the
prophet)
▪ Sadd al-dharà’i’ (blocking the means)
▪ istishāb (the continuation of the applicability of a rule that
was accepted in the past)
• Serving the public interest as objective of every single rule in Islam
o Sharī’ah is founded on the divine command and the public good of
the people in this world and the next
• Hanafi school of law
o Siyar (approach)
▪ the ways and methods followed by the Islamic state in its
dealings with non-Muslims in times of peace and war
▪ rules governing certain types of NIAC that occured in the
first half of the first Islamic century
• qitāl al-bughāh (fighting against rebels or
secessionists)
• ḥurūb al-riddah (wars of apostasy)
B. Characteristics of Islamic Law of War

• Religious dimension
o Compliance with the Islamic regulations on the use of force is an
act of worship which brings a Muslim soldier closer to God
• Instinct of Muslims to comply out of desire to obey Allah
o Respect for the Islamic regulations on the use of force was
something that a Muslim instinctively complied with and imposed
on himself through his desire to obey God, regardless of whether or
not his enemy adhered to the same rules
• Lack of consistent codification

o Contradictory rules should arise, firstly as a result of varying
interpretations of the texts from which the rules are derived
o Variation in the priorities of the jurists, some of whom emphasized
humanitarian concerns and compliance with the rules contained in
the sources of Islamic law, and others for whom the need to win the
war outweighed those concerns
• Specificity of context and sources
C. Principles of the Islamic Rules of War

• Typologies of armed conflict
o Jihad (IAC)
▪ The struggle to build a good Muslim society
▪ A believer’s internal struggle to live out the Muslim faith as
well as possible
▪ War: The struggle to defend Islam, with force if necessary
o NIAC
▪ ḥurūb alriddah (wars of apostasy)
▪ qitāl al-bughāh (fighting against rebels or secessionists)
▪ irābah (fighting against bandits, highway robbers, terrorists
or pirates)
▪ qitāl al- khawārij (fighting against violent religious fanatics).
• Principles
o Protection of Civilians and Non-Combatants
▪ al-muqātilı̄n (combatants), as understood by him from this
verse, as follows: “They must be taking part in the fighting;
anyone who is willing or prepared to fight cannot be
described as a combatant, except in metaphor, until they
enter into combat.
▪ Identified as non-combatants
• Women
• Children
• Elderly
• ‘usafā’ - hired man or employee, and in the context of
war it refers to anyone who works for, or is paid by,
the enemy to perform services on the battlefield,
perform tasks such as minding belongings and
animals, but would not engage in the fighting and
therefore could not be classified as combatants
• aṣḥāb al-ṣawāmi‘ (monks or religious hermits)
• Special other types of non-combatants
o Blind
o Incapacitated
o Insane
o Craftsmen and traders

Common Instructions
▪
• Abu Bakr
o Do not cut down fruit-bearing trees or destroy
buildings
o do not slaughter a sheep or a camel except for
food
o do not burn or drown palm trees
o do not loot
o do not be cowardly
• Umar ibn al- Khatṭạ̄ b
o fear God and not to kill farmers
• Ibn Qayyim al-Jawziyyah
o Muslims must fight those who attack them, but
not those who do not attack them
▪ Similar to AP I, Art. 48 - In order to
ensure respect for and protection of the
civilian population and civilian objects,
the Parties to the conflict shall at all
times distinguish between the civilian
population and combatants and between
civilian objects and military objectives
and accordingly shall direct their
operations only against military
objectives.
▪ Limitation on protection
• permissibility of killing a woman if she kills Muslim
soldiers, throws stones at them to kill them or stands
guard over enemy armies or strongholds
• she is queen of her country or a wealthy woman and
spends her money to incite the army to fight on the
battlefield
• a child is king or queen of his or her country and does
the same
o Permissible Weapons of War
▪ Objectives
• Not to endanger the lives of civilians and
noncombatants
• Spare the property of the enemy unless otherwise
dictated by military necessity
▪ War “Scenarios”
• direct or one-to-one combat with enemy fighters, in
which case the most commonly used weapon was the
sword (a weapon of high status in Arab culture and

heritage), followed to a lesser extent by the lance, bow
and spear
o civilians and non- combatants are present
among enemy combatants, sword fighting does
not endanger the lives of bystanders or risk
incidentally destroying their property.
▪ jurists, in particular those of the Mālikı̄
school, discussed the permissibility of
shooting the enemy with poison-tipped
arrows.
• enemy retreats inside fortifications and one-to-one
combat is not an option
o use of mangonels (a weapon for catapulting
large stones), fire, flooding and even siege as
weapons to force the enemy to surrender
o jurists unanimously permitted the use of
mangonels against an enemy fortress if required
by military necessity, but opinions differed on
whether it was permissible to use fire as a
weapon against the enemy: some prohibited it,
some disapproved of it, and others permitted it
either as a military necessity or in reciprocity.
▪ Chellenges on Applying Islamic Law
• Rules that permitted the use of those primitive forms
of indiscriminate attack in that specific era and war
context are now exploited to justify attacks against
civilians
• Some people draw parallels with those primitive
weapons to justify the use of chemical weapons and
other weapons of mass destruction.
o Human Shields and night attacks
▪ al-tatarrus (human shields)
• Kinds
o if enemy combatants take women, children, the
aged, etc., as human shields in order to force
Muslims to cease fighting
o if the enemy takes any Muslim individuals in
general, or individuals from ahl aldhimmah
(non- Muslim citizens of the dār al-Islām (the
Islamic state), as human shields
• Rule
o all of the jurists permit shooting at the human
shields in these two cases if required by military
necessity, provided that Muslims aim to direct

their attack at the combatants and avoid hitting
non-combatants as far as possible,
o Disagreements on Military Necessity
▪ al-Māwardı̄ and al-Shirāzı̄ - the military
necessity in this case would arise from
the risk of a Muslim defeat.
▪ al- Qurtubı̄ - avoiding “the collapse of the
entire Muslim nation into the hands of
the enemy”
▪ al-bayāt (night attacks)
• Implication
o fighting at night meant that the two armies
were unable to fight hand to hand because they
could not see one another in the darkness,
which rendered it necessary in such cases to
target the enemy using mangonels or other
types of indiscriminate weapon.
• Hadith
o Anas ibn Mālik - Prophet avoided attacking the
enemy at night
o al-Ṣa‘b ibn Jaththāmah - Prophet was
questioned about the permissibility of attacking
the enemy at night, which could result in
casualties among women and children, he did
not declare it prohibited
o Protection of Property
▪ Understanding
• acts instead constitute a crime of “al-fasād
(destruction, damage) in the land”
o Imam al-Awzā‘ı̄ - “it is prohibited for Muslims to
commit any sort of takhrı̄b, wanton destruction,
[during the course of hostilities] in enemy
territories because that is fasād and God does
not like fasād”
• even when targeting military property, the objective is
merely to force the enemy to surrender or cease
fighting, not to destroy or sabotage enemy property
o al-Shāfi‘ı̄ (d. 820) and Ibn Ḥazm (d. 1064)
▪ inanimate objects
▪ living property such as horses, cattle and
bees
• inflicting damage on living
property such as livestock for any
reason other than for food was

tantamount to torture, which is
prohibited in Islam.
o Prohibition of Mutilation of the Enemy
▪ Hadith
• Do not loot, do not be treacherous and do not mutilate”
[“lā taghlū wa lā taghdurū wa lā tumathilū”]
o ghulūl (looting)
▪ when a combatant takes or steals an item
from the war booty before it is divided up,
or allocates part of the war booty to
themselves without handing it over to be
distributed by the army chief
o ghadr (perfidy, treachery)
▪ obliges Muslims to respect their contracts
and agreements, this does not mean that
ruses are prohibited in war, as the
Prophet held that “war is ruse”
o mutilation of enemy corpses
▪ as stated in the Qur’an: “We have
honoured the Children of Adam.” The
Prophet also instructed the Muslims to
avoid injuring the enemy’s face during
fighting,out of respect for human beings
and in order to preserve the dignity
bestowed upon them by God in the
aforementioned verse.
▪ As well as respect for humanity and
preservation of the dignity of the dead,
another reason why Muslims ensured the
burial of enemy corpses was to prevent
them from decomposing in the open.
• Ibn Ḥazm (d. 1064) instructed
Muslims to bury the bodies of their
deceased enemies because if they
did not, the bodies would end up
rotting and could be eaten by
predatory animals; this would be
tantamount to mutilation, which is
forbidden in Islam.
o Treatment of Prisoners
▪ Definition
• based on the treatment of prisoners in the battle of
Badr in the second year of the Islamic calendar (624
AD)

o “Observe good treatment towards the
prisoners.”
▪ Prisoners were distributed among the
homes of the Companions of the Prophet
▪ This altruistic treatment of enemy PoWs,
by feeding them good food despite the
captors’ own hunger, is described in the
Qur’an as follows: “And they feed the
needy, the orphans and the captives [from
their own] food, despite their love for it
[also interpreted as “because of their love
for God]”.
o POW only used to refer to male combatants,
since the custom at the time was for women or
children who were captured to be enslaved or
exchanged for Muslim prisoners.
▪ Basis
• “When you meet the disbelievers in battle, strike them
in the neck, and once they are defeated, bind any
captives firmly – later you can release them by grace
or by ransom – until the toils of war have ended.”
• When the Sacred Months have passed, kill the
polytheists wherever you find them and capture them
and besiege them and await for them in every place of
ambush.”
▪ Rules
• First Camp: Ibn ‘Abbās (d. 668), ‘Abd Allah ibn ‘Umar
(d. 693), al-Ḥasan al-Basṛ ı̄ (d. 728) and Sa‘ı̄ d ibn
Jubayr (d. 714)
o the law on prisoners in Islam required them to
be freed by “grace” or “ransom”
• Second Camp: Ḥanafı̄ jurists
o the head of State was entitled to either execute
the prisoners or enslave them, according to what
best served the public interest
▪ Al-Shaybānı̄ - permissible to exchange
enemy prisoners.
▪ remaining Ḥanafı̄ jurists - the head of
State was entitled to release prisoners as
long as they remained in the Islamic state
and paid the jizyah (tax levied to exempt
eligible males from conscription).

•
Third Camp: Shāfi‘ı̄ s, the Mālikı̄ s and the Ḥanbalı̄ s,
as well as al-Awzā‘ı̄ (d. 774) and Sufyān al-Thawrı̄ (d.
778)
o the head of State was entitled to choose one of
the following four options, depending on what
he deemed to best serve the public interest
▪ execute some or all of the prisoners
▪ enslave them
▪ set them free
▪ exchange them for Muslim prisoners.
o Mālikıs also added the argument of some of the
Ḥ̄ anafıs that the prisoners could remain in the
Islamic state as long as they paid the jizyah
o Quarter and Safe Conduct
▪ Islamic system of amān (literally, protection, safety)
• safe conduct, which refers to a contract of protection
granted to any non-Muslim citizen of an enemy State
to enter the historic Islamic state on a temporary basis
for peaceful purposes such as business, education or
tourism.
• quarter – is individual or collective protection granted
to enemy combatants during operations on the
battlefield and requires Muslims to stop fighting
against the individual or group and protect them and
their property until they return to their country.
o Quarter is granted if the individual in any way
expresses an intention to stop fighting and the
desire to claim safety, whether this request is
written or verbal, whether in Arabic or in any
other language, and whether explicit or implicit,
or even by gesture.
▪ the objective of amān is ḥaqn al-dam
(prevention of bloodshed, protection of
life)
▪ jurists were unanimous that if an enemy
mistakenly assumes that a Muslim has
granted him amān, then the amān is
valid, even if the Muslim had no intention
of granting it.
▪ Ibn Qudāmah advocates that the mere
fact of an enemy belligerent’s attempt to
enter Muslim territory by non-violent
means entitles him to amān.
o Management of Dead Bodies

▪ avoid deliberately injuring enemy combatants in the face is a
sign of respecting human dignity.
▪ martyrs are to be buried without ritual washing, shrouding
or even funeral prayer to glorify their sacrifices
▪ each body is to be buried in an individual grave except in
cases of necessity like natural disasters or armed conflicts.
▪ Muslims must return the dead bodies of the adverse party,
and if that party does not take them and/or bury them, it
becomes an obligation of the Muslim army to do so.

Module V
Detention and Internment
PUNISHMENT/ PROSECUTION OF FIGHTERS
IAC- PoW NIAC- fighters (civilians)

o No punishment for lawful acts of o No combatant privilege
war (e.g. killing of adverse
soldier)
o Punishment only for war crimes o Can be held criminal responsible
(e.g. killing the adverse soldier for lawful acts of war
that is hors de combat)
o Procedural safeguards are
provided for

Categories
IAC NIAC
• Internment • Internment
o PoW o Fighter-civilian
o Civilian Internee
• Punishment • Punishment
o PoW-war crimes o Fighter- any crimes, not
o Civilian-any crimes only war crimes
o Civilian-any crimes
A. Relevance of Status
• Personal status under IHL serves to distinguish categories of person that are
subject to different regimes in terms of the:
o legal basis for and the conditions of their detention
o their treatment
o their judicial or procedural rights
o the conditions governing their release
o ICRC’s entitlement to conduct visits.
• In IAC - two categories of person deprived of their liberty that benefit from a
distinct status are prisoners of war and persons protected under the Fourth
Geneva Convention.
1. Combatants
• Combatant status and privilege
o Two categories of combatants
▪ Members of armed forces
▪ Participants in levee en masse
o the most important consequence of combatant status is the
privilege of combatancy, which affords combatants “the right to
participate directly in hostilities” on behalf of a party to an
international armed conflict.
▪ Combatants enjoy immunity from prosecution for lawful acts
of war, that is to say, for hostile acts carried out in
conformity with IHL
▪ The privilege of combatancy does not exist in IHL governing
non-international armed conflict.
• “Unprivileged” or “unlawful” combatants
o Civilians directly participating in hostilities and others supporting
the enemy’s war effort who do not enjoy the privilege of combatancy
are sometimes described as “unprivileged” or “unlawful”
combatants and said to fall outside the categories of person
protected by the 1949 Geneva Conventions.

o The classification of persons captured by a belligerent party as
“unprivileged” or “unlawful” combatants cannot deprive them of the
humanitarian protection afforded by IHL.
o States are free, of course, to prohibit persons not entitled to the
privilege of combatancy from directly participating in hostilities
and, thus, to turn combatancy that is “unprivileged” as a matter of
IHL into combatancy that is “unlawful” as a matter of national law.
2. Prisoners of war
• Combatants who have fallen into the power of an adverse party to a
conflict are prisoners of war
• In the case of irregular armed forces, the Third Geneva Convention
ties their entitlement to prisoner-of-war status to collective fulfilment
of the same four conditions that the Hague Regulations, Article 1
require for combatant status:
o Commanded by a person responsible for his or her subordinates
o Fixed distinctive sign recognizable at a distance
o Carry arms openly
o Conduct their operations in accordance with the laws and
customs of war.
• Entitled to prisoner-of-war status, but not to the privilege of
combatancy, are civilians formally authorized to accompany the armed
forces, such as civilian crew members of military aircraft, war
correspondents, private contractors, and crew members of the
merchant marine or civilian aircraft of the belligerent parties.
• Medical and religious personnel who have fallen into the hands of an
adverse party are not considered as prisoners of war, may be retained
only to the extent required to meet the medical and spiritual needs of
prisoners of war, and are not considered as being interned or detained
stricto sensu.
• Also considered as POW
o Demobilized military personnel in occupied territory
▪ Former military personnel residing in occupied territory
who are interned by the occupying power for security
reasons because of their former membership in the
opposing armed forces and their continued allegiance to
an opposing belligerent in an ongoing armed conflict
o Military personnel interned in a neutral country.
▪ Neutral States receiving on their territory members of the
armed forces of belligerent parties, including the wounded
and sick, are obliged to intern such personnel and to
provide them, as a minimum, with the humanitarian
benefits and protection afforded to prisoners of war.
• Consequence of POW Status:

o Prisoners of war may be interned by the detaining power until
the end of active hostilities without any particular judicial or
administrative procedure.
o Internment of prisoners of war is not punitive but preventive in
nature.
▪ Aims to keep hostile combatants off the battlefield under
humane conditions and to protect them from the dangers
resulting from ongoing hostilities.
3. Persons protected under GC IV
• GR: persons not qualifying for prisoner-of-war status are covered by
the Fourth Geneva Convention “on the protection of civilian persons in
time of war.”
o The Convention protects not only (and not all) civilians, but
essentially all persons not entitled to prisoner-of-war status
“who, at a given moment and, in any manner, whatsoever, find
themselves, in case of a conflict or occupation, in the hands of a
Party to the conflict or Occupying Power of which they are not
nationals.” [GC IV, Art. 4(1) and (4)]
o The only persons not entitled to prisoner-of-war status whom a
belligerent State is not obliged to protect under the Fourth
Geneva Convention are its own nationals and, provided that it
maintains normal diplomatic relations with the State of
nationality, the nationals of neutral States within its territory
and the nationals of co-belligerent States.
4. Other persons deprived of liberty
• AP I, Art. 75 - all persons affected by a situation of international
armed conflict who are in the power of a belligerent party and who do
not benefit from more favourable treatment under IHL must be treated
humanely in all circumstances, and must benefit, as a minimum, from
a number of fundamental guarantees, including judicial guarantees,
that have become part of customary international law.
• All persons deprived of their liberty by a belligerent State fall within
the jurisdiction of that State and therefore benefit from the protection
of international human rights law.
B. Internment of POWs
1. Determination and presumption of status
• AP I, Art 45(1) - persons having taken part in hostilities and having
fallen into the power of an adverse party must be presumed to be
prisoners of war, if they either claim or appear to be entitled to
prisoner-of-war status, or if the party on which they depend claims
such status on their behalf.
• GC III, Art. 5(2); AP I, Art. 45 (1) - Any doubt arise as to whether such
persons are entitled to prisoner-of-war status, they must be afforded

such status until such time as their status has been determined by a
competent tribunal.
• AP I, Art. 45(2) - persons being tried by an adverse party for offences
arising out of the hostilities have the right to assert their entitlement
to prisoner-of-war status and to have it adjudicated by a judicial
tribunal, whenever possible before the trial for the offence.
o Competent tribunals
▪ The establishment of military commissions by the
executive branch appears to be acceptable for this
purpose. As a minimum, however, any such competent
tribunal must meet the requirements of neutrality and
independence, and guarantee fundamental procedural
safeguards, all of which is inherent in the concepts of due
process and the rule of law.
• GC III, Art. 7. POWs may in no circumstances renounce any or all of
the rights afforded to them under IHL
2. Temporal considerations
• Beginning of captivity
o GC III, Art. 5 - …from the time they fall into the power of the
enemy…
▪ “fallen into the power of the enemy” - captured in the
course of hostilities or taken into custody following
surrender or mass capitulation. Being hors de combat is
not sufficient.
o Identity documents and objects of personal use remain with the
POW
o GC III, Art. 17(1) and (3), CIHL Rule 123 - POW are not obliged
to provide any information other than their surname, first name,
rank, date of birth, and army, regimental, personal or serial
number, or equivalent information, which must also be indicated
on a personal identity card issued by the belligerent party of
origin.
o Identity of captured POW communicated to country of origin,
notification of transfers, releases, repatriations, escapes,
hospitalizations, and deaths through the National Information
Bureaux and ICRC’s Central Tracing Agency.
o GC III, Art. 19(1) and (3), 20(1) and (2) - After capture, prisoners
of war must be evacuated to camps situated at a safe distance
from the combat zone.
o GC III, Arts 19(3) and 20(2) - provided with the necessary food,
water, clothing and medical care, and suitable precautions must
be taken to ensure their safety during evacuation.
▪ Exceptions on duty to evacuate

•GC III, Art. 19(2) - wounded or sick prisoners of
war may be temporarily kept back if their medical
condition is such that being evacuated would
expose them to greater risks than remaining in a
danger zone.
• AP I, Art. 41(3) - prisoners of war are captured
during unusual conditions of combat that prevent
their evacuation, such as during commando
operations behind enemy lines, they may be
disarmed, but must be released and all feasible
precautions must be taken to ensure their safety.
• Early termination of captivity
o GC III, Art. 109 - repatriation, or accommodation in a neutral
country, of wounded or sick prisoners of war for medical or
humanitarian reasons
o Escape
▪ GC III, Art. 92(1) and (3) - recaptured after an
unsuccessful attempt to escape may be subjected only to
disciplinary punishment
▪ GC III, Art. 91(2) - no punishment whatsoever may be
imposed in case of re- capture after a successful escape
▪ GC III, Art. 91(1) – when escape is successful
• rejoined his own or co-belligerent armed forces;
• has left the territory controlled by the detaining
power or its allies;
• has reached a friendly or allied ship in the
territorial waters, but not under the control, of the
detaining power
o GC III, Arts 120 and 121(1), (2) and (3) – Death
• General release, repatriation, and transfers
o GC III, Art. 118(1) - At the cessation of active hostilities, all
prisoners of war must be released and repatriated without
delay, even if no peace treaty or armistice agreement has been
reached between the parties.
o The duty of the detaining power to release and repatriate
prisoners of war is absolute.
▪ GC III, Art. 7 - While no prisoner of war may be
repatriated against his will as long as hostilities are
ongoing,prisoners of war are not, in principle, at liberty to
refuse such repatriation after the cessation of active
hostilities.
• State practice since World War II has increasingly
shifted towards accepting the refusal of prisoners of

war to be repatriated, particularly under the
customary principle of non-refoulement.
o No person may be transferred to a country
where he or she may have reason to fear
persecution, torture or death on account of
his or her race, religion, nationality or
political opinion. [Convention relating to the
Status of Refugees, 28 July 1951, Art. 33(1);
GC IV, Art. 45(4). ]
▪ GC III, Art. 115(2) and (3); CIHL, Rule 128 - prisoners of
war who are detained in connection with a judicial
prosecution or a conviction for a criminal offence can be
held beyond the cessation of hostilities until the judicial
proceedings are completed or until they have served their
sentence.
3. Treatment and conditions of internment
• Responsibility and humane treatment
o GC III, Art. 12(1) - Prisoners of war “are in the hands of the
enemy Power, but not of the individuals or military units who
have captuxred them.
o GC III, Arts 13 and 14; CIHL, Rule 87 - Prisoners of war are
entitled to humane treatment and respect for their person at all
times.
o GC III, Art. 16. – detaining power must treat all prisoners of
war equally, without any adverse distinction based on criteria
such as race, nationality, religious belief or political opinion.
This does not preclude, of course, privileged treatment justified
by rank, sex, age, medical condition or professional
qualifications.
o GC III, Art. 13(1); CIHL, Rule 92. - HL prohibits any unlawful
act or omission causing death or seriously endangering the
health of prisoners of war, including, in particular, physical
mutilation, and medical or scientific experiments that are not
justified by the medical condition and not in the interests of the
prisoner concerned.
o GC III, Art. 13(2) - Also, prisoners of war must at all times be
protected against violence, intimidation, insults and public
curiosity.
o GC III, Art. 13(3); CIHL, Rule 146. – Protection against
reprisals by the detaining power
• Conditions of internment
o Places of internment
▪ GC III, Arts 21(1) and 22(1) - The detaining power may
subject prisoners of war to internment or restrict their

movements, but it may not hold them in closed
confinement or penitentiaries except where necessary to
safeguard their health or for the purpose of penal and
disciplinary sanctions.
▪ GC III, Art. 22(3) - interned in groups according to their
nationality, language and customs, and with the
comrades with whom they were serving at the time of
capture.
▪ GC III, Art. 21(2) and (3) – POWs may be released
partially or wholly on parole or promise.
▪ GC III, Arts 22(1) and (2), and 23(1); CIHL, Rule 121 -
prisoners of war must be held on land and outside zones
exposed to military combat or an unhealthy climate.
▪ GC III, Art. 23(1) and (2) – Protection against against
aerial bombardments and other dangers of war.
▪ GC III, Art. 23(3) and (4) - POW camps should be marked
by the letters PW or PG – of a size and appearance that
make them clearly visible – and their location
communicated to the opposing party.
o Basic Needs
▪ GC III, Arts 15 and 30(5); CIHL, Rule 118. - necessary
food, water, shelter, clothing and medical care free of
charge
• GC III, Arts 25(1), 26(1), (2) and (3), and 27(1) -
while taking into account the local climate, the
nature of their daily work, and their habits and
customs.
▪ GC III, Arts 25(4) and 29(2); CIHL, Rule 119 – Separate
female dormitories and sanitary facilities
▪ GC III, Art. 28(1) - Prisoners of war must also be allowed
to procure additional foodstuffs, soap and tobacco and
similar articles at local market prices, if financial means
permit
▪ GC III, Art. 29(1) - all sanitary measures necessary to
ensure clean and hygienic conditions in the camps
▪ GC III, Art. 31 - conduct medical inspections at least once
a month.
▪ GC III, Art. 30(3) – POW access to medical care
corresponding to their needs, preferably from medical
personnel of the belligerent party to which they belong
and, if possible, of their nationality.
▪ GC III, Art. 34; CIHL, Rule 127 - allowed to freely
exercise their religion and to attend the services of their
faith in premises adequate for that purpose

▪ GC III, Art. 38 - encourage prisoners of war to engage in
intellectual, educational, and recreational activities,
including sports and games, and provide them with the
time, premises and equipment necessary for that purpose.
o Command and discipline
▪ GC III, Art. 39(1) - Every prisoner-of-war camp must be
put under the immediate authority of a commissioned
officer belonging to the regular armed forces of the
detaining power and responsible for the application of the
Third Geneva Convention.
▪ GC III, Art. 41(2) - Every order and command addressed
to individual prisoners of war must be given in a language
they understand.
▪ GC III, Art. 42 - The detaining authority may, within the
terms of the Third Geneva Convention, take all measures
reasonably necessary to prevent or suppress riots, escapes
or similar acts of disobedience.
• However, the use of weapons against prisoners of
war, especially against those who are escaping or
attempting to escape, constitutes an extreme
measure and must always be preceded by warnings
appropriate to the circumstances.
• Labor and financial resources
o GC III, Art. 49(1) – POW who are fit may be compelled to work,
taking into account their age, sex, rank and physical condition.
o GC III, Art. 49(2) and (3) - Officers or persons of equivalent
status may not be compelled to work, and non-commissioned
officers may be required to carry out supervisory tasks only.
Both may, however, request that suitable work be found for
them.
o GC III, Art. 50. - Mandatory work is restricted to tasks related
to camp administration, installation or maintenance, or to one of
the other areas provided for in the Third Geneva Convention.
▪ Prohibited work
• work of a military character or purpose, or work in
the metallurgical, machinery and chemical
industries that may be expected to make an
important contribution to the war effort.
• Humiliating work
• Unhealthy or dangerous work, such as the removal
of mines and similar devices.
o GC III, Art. 55. - Any prisoner of war may be exempted from
work for medical reasons.

o GC III, Arts 60, 62 and 67 - All prisoners of war are entitled to
receive from the detaining power fair payment for the work they
are required to carry out, as well as a monthly advance of pay
commensurate with their rank in their country of origin.
• Relations with the world outside
o Prisoners of war should maintain relations with the world
outside, most notably with their families and their country of
origin.
o GC III, Art. 76(1) and (2) - All correspondence, parcels or
shipments addressed to prisoners of war or sent by them may be
censored or examined by both the sending and the receiving
State.
o Representatives of the Protecting Power and ICRC delegates
must have access to all places where prisoners of war may be
held.
▪ The duration and frequency of these visits may not be
restricted, and visits may not be prohibited except for
reasons of imperative military necessity, and then only as
an exceptional and temporary measure.
• Relations with the authorities
o Requests, complaints, and representatives
▪ GC III, Art. 78(1) and (2). - Prisoners of war have an
unrestricted right to make requests and complaints
regarding their conditions of internment to the detaining
power, the representatives of the Protecting Power or the
ICRC delegates.
o Disciplinary and judicial authority
▪ GC III, Art. 82. - Prisoners of war are subject to the laws,
regulations and orders in force in the armed forces of the
detaining power. The latter may, within the boundaries of
IHL, take judicial or disciplinary measures in respect of
any punishable offence committed by a prisoner of war.
o Preferential treatment
▪ IHL even requires that prisoners of war receive preferen-
tial treatment, most notably because they have no duty of
allegiance towards the detaining power and find
themselves in captivity owing to circumstances beyond
their control.
• GC III, Art. 83. – disciplinary over judicial
measures
• GC III, Art. 87(2). – Sentence not bound by
minimum penalties prescribed by national law

•GC III, Art. 87(4). - no prisoner of war may be
deprived of his rank by the detaining power, or
prevented from wearing his badges.
• GC III, Arts 100(3) and 101 – When death sentence
is pronounced, execution is to be delayed by at least
six months
• GC III, Art. 85. - Prisoners of war prosecuted under
the laws of the detaining power for acts committed
prior to their capture retain the benefits and
protection of their status under IHL even if
convicted.
o Procedural guarantees
▪ GC III, Art. 84(2); CIHL, Rule 100. - In no circumstances
may prisoners of war be tried by a court of any kind that
fails to offer the essential guarantees of independence and
impartiality as generally recognized or to afford the
accused adequate rights and means of defence.
o Prohibition of cruel, inhuman, or degrading punishment
▪ Any prisoner of war convicted for a disciplinary or
criminal offence remains under the protection of IHL,
including in matters concerning the choice and execution
of the penalty
▪ GC III, Art. 89(3) - disciplinary punishments may in no
case be inhuman, brutal or dangerous to the health of
prisoners of war.
▪ GC III, Art. 87(3); CIHL, Rules 90–91 and 103 -
prohibited to resort to collective punishment for
individual acts, to corporal punishment, to imprisonment
in premises without daylight and, in general, to any form
of torture or cruelty.
C. Detention and Internment of Civilians

• Those falling under the protection of the Fourth Geneva Convention.
o Belligerent States are regularly confronted with civilians engaged in
criminal activities or posing a serious security threat requiring their
detention.
o Captured mercenaries and members of the armed forces caught in the
act of espionage, or while preparing or conducting attacks without
wearing a uniform, are not entitled to prisoner-of-war status
1. Beginning and end of internment

o Beginning of internment
▪ Compulsory internment

• Most sever security measure at the disposal of a
belligerent party.
• GC IV, Arts 41(1) and 78(1). - May only be imposed as a
measure of last resort, when less intrusive measures of
control, such as assigned residence, restrictions of
movement or the prohibition of certain professional or
political activities, are deemed inadequate.
• GC IV, Art. 42(1) - In their own territory, parties to a
conflict may order the internment of protected persons
only if their security makes internment “absolutely
necessary,”
o GC IV, Art. 78(1) - in occupied territories it must be
considered “necessary for imperative reasons of
security.”
o These terms can be regarded as largely
synonymous.
o The person in question pose a significant threat to
the internal or external security of the detaining
power that cannot be adequately addressed by less
intrusive measures than his or her internment.
o [J.S. Pictet] The detaining State “must have good
reason to think that the person concerned, by his
activities, knowledge or qualifications, represents a
real threat to its present or future security.”
▪ Procedural safeguards
• [J.S. Pictet] The determination that a protected person
represents a security threat necessitating his or her
internment must be made for each individual in regular
proceedings before an appropriate court or administrative
board designated by the detaining or occupying power for
that purpose, not before an individual judge or military
officer.
• GC IV, Art. 43(2) - Unless the protected persons
concerned object, the detaining power must notify the
Protecting Power, without delay, of the names of all
protected persons who have been interned or released
from internment, along with any decisions of the relevant
courts or administrative boards.
▪ Voluntary Internment
• GC IV, Art. 42(2) If their situation renders it necessary,
protected persons finding themselves in the territory of a
party to the conflict may also voluntarily demand their
internment but, in order to ensure the genuineness of the

demand and avoid abuse, must do so through
representatives of the Protecting Power or the ICRC.
o include situations where they are exposed to
threats or violence on the part of the general
population, or where their nationality or allegiance
renders them unable to receive employment or
otherwise earn a living.
▪ Punitive internment
• GC IV, Art. 68(1) - possibility of converting a sentence of
imprisonment to one of internment for the same period as
a (preferential) penalty for a criminal offence.
o [J.S. Pictet] applies only in occupied territory and
aims to afford protected persons who have com-
mitted minor offences devoid of dishonourable
motives the more beneficial treatment and
conditions of internment as opposed to common
imprisonment.
o Termination of internment
▪ Cessation of individual security threat
▪ Escape
▪ Death
o Release for humanitarian reasons
▪ GC IV, Art. 132(2) - Belligerent parties should, even during
hostilities, endeavour to release, repatriate, or return to their
places of residence certain categories of internee, or to
accommodate them in a neutral country, in particular children,
pregnant women and mothers with infants and young children,
the wounded and sick, and internees who have been detained for
a long time.
o General release, repatriation, or return
▪ GC IV, Art. 133(1); CIHL, Rule 128 B - internment “shall cease
as soon as possible after the close of hostilities”
▪ The rationale of the provision is not to prohibit all forms of
internment after the end of hostilities, but to prevent the
indefinite prolongation of internment when the general context
justifying such measures has ceased to exist.
o Continued detention
▪ The only protected persons who may be held on the territory of a
party to the conflict beyond the close of hostilities are those
against whom penal proceedings are pending, or who are serving
a sentence, for offences not exclusively subject to disciplinary
penalties.

▪ GC IV, Art. 133(2); CIHL, Rule 128 - Such persons may be
detained until the close of such proceedings and, if necessary,
until they have served their sentence.
▪ Strictly speaking, of course, such deprivation of liberty
constitutes criminal detention or punitive imprisonment, but no
longer internment within the meaning of IHL. Nevertheless,
even as criminal convicts, the persons concerned continue to
benefit from their status as protected persons until their final
release, repatriation or return.
2. Treatment and conditions of internment

o Responsibility and humane treatment
▪ Responsibility of detaining power
• GC IV, Art. 29 - Irrespective of any individual
responsibility, parties to a conflict remain responsible for
the treatment accorded by their agents to protected
persons.
• GC IV, Arts 45(1) and (3) - Internees may lawfully be
transferred to another State only if the latter is willing
and able to grant them the protection to which they are
entitled under IHL, but in no case may they be
transferred out of an occupied territory.
• Once lawfully transferred, the receiving State has the
responsibility for the protection
• If receiving State fails to fulfil its obligation, the
original detaining power must take effective
measures to correct the situation or ensure that the
internees in question are returned to its
jurisdiction.
▪ Humane treatment
• Protected persons are entitled, in all circumstances, to
respect for their physical and psychological integrity,
their honour, their family rights, their religious
convictions and practices, and their manners and
customs.
• They must be treated humanely at all times, and
protected, especially against all acts of violence or threats
thereof and against insults and public curiosity.
• AP I, Art. 75(2) - Prohibited acts
• Murder
• Torture
• Corporal punishment
• Mutilation
• Outrages against human dignity

•Hostage-taking
•Collective punishment
•Threats to engage in any of the abovementioned
acts
• GC IV, Art. 31 - Any form of physical or
psychological coercion, in particular to obtain
information
• GC IV, Art. 33 - reprisals and measures of
intimidation and terrorism
• GC IV, Art. 32 - unjustified medical or scientific
experiments and any other form of brutality
• GC I–IV, common Art. 3; GC IV, Art. 27(2); AP I,
Art. 75; CIHL, Rules 93 and 134 - any form of
sexual violence or abuse
▪ Conditions of internment
• Places of internment
o GC IV, Art. 83(1); CIHL, Rule 121 - may not
be set up in areas particularly exposed to the
hostilities.
o GC IV, Art. 83(2) and (3) - marked – in such
a way as to make them clearly visible – by
the letters “IC” and their location
communicated to the opposing party.
o GC IV, Art. 88 - places of internment
exposed to air raids and other dangers of war
must be equipped with shelters and, more
generally, must benefit from the same
protective measures as the general
population.
o GC IV, Art. 28 – cannot be used as “human
shields” to render certain objects or areas
immune from military operations
• Basic needs
o GC IV, Arts 89 and 90; CIHL, Rule 118 - The
detaining power must provide protected
persons – for the duration of their
internment, and free of charge – sufficient
food, drinking water and clothing to keep
them in good physical and mental health,
taking into account factors such as climate,
age, sex, medical condition, employment and
custom.
o GC IV, Art. 87(1) - internees must also be
allowed to purchase additional foodstuffs,

soap, tobacco and similar articles at local
market prices
o GC IV, Art. 85(1). - Premises used for the
internment of protected persons must
provide adequate standards of hygiene and
health.
o GC IV, Arts 91 and 95(3) – access to free
medical care
o GC IV, Art. 92 – Medical inspections once a
month to supervise the general state of
health, nutrition and cleanliness of the
internees and to screen them for contagious
diseases
• Religion, recreation, study
o GC IV, Arts 86 and 93(1); CIHL, Rule 127 -
Within the disciplinary routine prescribed by
the military authorities, internees must be
allowed to freely exercise their religion and
to attend the services of their faith in
premises adequate for that purpose.
o GC IV, Art. 94(1) - encourage internees to
engage in intellectual, educational and
recreational activities, including sports and
games, and provide them with the support
and premises necessary for that purpose.
o GC IV, Art. 94(2) and (3) - young people must
be allowed to attend schools either within
the place of internment or outside, and
special playgrounds must be reserved for
them
• Command and discipline
o GC IV, Art. 99(1) - Every place of internment
must be put under the authority of a
responsible officer, chosen from the regular
military forces or the regular civil
administration of the detaining power, who
will be responsible for ensuring that the
provisions of the Fourth Geneva Convention
are known to, and complied with, by the staff
in charge of internees.
o Throughout their internment, protected
persons remain subject to the disciplinary
regime of their place of internment. Such
regime must be consistent with

humanitarian principles and may in no
circumstances impose any physical exertion
endangering the health of internees or
involve their physical or moral victimization.
o Prohibitions - GC IV, Art. 100; CIHL, Rule
92.
▪ the identification of internees by
tattooing or imprinting signs or
markings on their bodies
▪ prolonged standing and roll-calls,
punishment drills, military drills and
manoeuvres,
▪ reduction of food rations
▪ Labor, personal property, and financial resources
• Work
o Internees can volunteer to work but,
contrary to prisoners of war and protected
persons who are not interned, cannot be
compelled to work.
o Prohibition - GC IV, Art. 95(1); CIHL, Rule
95.
▪ tasks of a degrading or humiliating
nature, or
▪ work directly related to the conduct of
military operations
o GC IV, Art. 95(3) - The detaining power may,
however, require internees to do
administrative and maintenance work in
places of internment, or perform duties
connected with the protection of internees
against aerial bombardment or other war
risks.
• Personal property and financial resources
o GC IV, Art. 98 (1) - The detaining power
must provide all internees with regular
allowances sufficient to purchase goods and
articles such as tobacco and toiletries.
o GC IV, Art. 27(3); CIHL, Rule 88 - In
addition, and subject to the prohibition
against unjustified discrimination among
protected persons
o GC IV, Art. 98(2) – permission to receive
allowances from their country of origin or
allegiance, the Protecting Power, any

organizations assisting them, or their
families, as well as the income on their
property
o GC IV, Art. 98(3) – permitted to send money
to families and other dependents
o GC IV, Art. 97(1), (2) and (5); CIHL, Rule
122 - When protected persons are interned,
money in excess of their daily requirements,
and other valuables and objects in their
possession, may be taken from them against
proper receipt, and must be credited to their
personal accounts or safeguarded on their
behalf until their release.
o Internees must also be permitted to keep
objects of personal use or sentimental value,
as well as their identity documents.
▪ Relations with outside world
• Transmission of information
o GC IV, Arts 136(1) and 137(1) - each party
must establish an official Information
Bureau responsible for replying to all
enquiries concerning protected persons in its
power, and for transmitting, within the
shortest possible period, the necessary
information to their countries of nationality
or residence through the Protecting Power
and the ICRC's Central Tracing Agency
• Exercise of civil capacity
o GC IV, Art. 80. - During their internment,
protected persons retain their full civil
capacity and can exercise all rights that are
compatible with their current status and
applicable laws.
▪ Manage property
▪ Send and receive legal documents
▪ Consult a lawyer whenever necessary
▪ Not prejudiced in the preparation and
conduct of court proceedings or in
execution of any judicial decision
• Correspondence, shipments, and visitors
o GC IV, Art. 106; CIHL, Rules 105 and 125 -
every internee must be enabled to send an
internment card to his family and to the

Central Tracing Agency, informing them of
his detention, address and state of health.
o GC IV, Arts 107-113; CIHL, Rule 125 -
Throughout their internment and subject to
censorship, protected persons also have the
right to send and receive correspondence,
and to receive individual and collective relief
shipments according to standards that
essentially match those applicable to
prisoners of war.
o GC IV, Art. 116(1); CIHL, Rule 126 -
internees are also allowed to receive visitors,
especially close relatives, at regular intervals
and as frequently as possible.
• Access for the Protecting Power and the ICRC
o GC IV, Art. 143(1); CIHL, Rule 124 -
representatives of the Protecting Power and
delegates of the ICRC must be permitted to
go to all places where protected persons are
interned
▪ Allowed to interview the internees
without witnesses
▪ Duration and frequency cannot be
restricted
▪ Visits may not be prohibited except for
imperative military necessity
▪ Derogations under GC IV Article 5
• GR: The protection afforded by IHL cannot be
derogated from without express treaty provisions to
the contrary.
o Exceptions, for person suspected or has
engaged in
▪ Espionage
▪ Sabotage
▪ Other activities hostile to the
detaining power
• May be deprived of rights of
communication in occupied
territory by the occupying
power
• In belligerent party’s own
territory, xx deprived of “such
rights and privileges (...) as

would (...) be prejudicial to the
security of such State.”
• Derogation is not unlimited
o AP I, Art. 75(1), (2), (3) and (4); CIHL, Rules
87 and 100 - IHL guarantees of humane
treatment and a fair and regular trial may
not be derogated
o Ss derogable rights and privileges of the
protected person referred to in the clause
must be distinguished from the mutual
obligations of the belligerent parties, which
are not subject to derogation.
o In the case of occupied territories, the
possibility of derogation is already restricted
to the individual right to communication of
protected persons detained as spies.
o Any derogatory measure must be lifted “at
the earliest date consistent with the security
of the State or Occupying Power.”
▪ Relations with Authorities
• Petitions, complaints, internee committees
• GC IV, Art. 101 - Internees have an unrestricted
right to file petitions and complaints with the
detaining authorities or the Protecting Power with
regard to their conditions of internment.
• Disciplinary and judicial authority
• GC IV, Art. 117(1) - internees are subject to the
laws in force in the territory in which they are
detained.
• Preferential Treatment
o GC IV, Art. 118(1) - when fixing the penalty
for an offence committed by an internee, the
courts or authorities must take into account
that the defendant is not a national of the
detaining power and should not be bound by
the minimum penalties prescribed in
national law.
• Disciplinary procedures
• The judicial guarantees and the rules governing the
execution of penal sanctions against internees are
the same as those afforded to protected persons
who are not interned.
• Prohibition of cruel, inhuman, or degrading punishment

•
GC IV, Art. 119(2); CIHL, Rule 90 - disciplinary
punishments may in no case be inhuman, brutal or
dangerous to the health of internees
o Prohibited acts
▪ GC IV, Art. 33; CIHL, Rule 103. –
collective punishment for individual
acts
▪ GC IV, Art. 32; CIHL, Rule 91 –
corporal punishment
▪ GC IV, Art. 118(2); CIHL, Rule 90 -
imprisonment in premises without
daylight, and, in general, all forms of
cruelty are prohibited without
exception.
▪ Transfer of internees
• The detaining power may lawfully transfer internees
between places of internment, whether within the
territory under its control or to another country willing
and able to afford the internees the protection they are
entitled to under IHL.
• Restrictions:
o GC IV, Art. 49; CIHL, Rule 129 - protected
persons may not be transferred or deported
from occupied territory
o GC IV, Art. 45(4) - the principle of non-
refoulement applies to all transfers or
deportations
o Criminal procedures and detention
▪ Parties to an international armed conflict must run a detention
system for the investigation, trial and punishment of criminal
offences by protected persons, whether in occupied territory or
within their national borders.
▪ Judicial guarantees
• GC IV, Arts 71-76 and 126; AP I, Art. 75(4) - fundamental
fair-trial guarantees for the prosecution and punishment
of criminal offences related to the armed conflict.
• AP I, Art. 75(4)(d); CIHL, Rule 100 – presumption of
innocence until proven guilty according to law
• GC IV, Arts 71(2) and 72; AP I, Art. 75(4)(a) – informed of
the allegations brought against hum and must be afforded
all the means and rights necessary to prepare and
conduct his defense.
• AP I, Art. 75(4)(e); CIHL, Rule 100. – Be tried in his
presence

• GC IV, Art. 72; AP I, Art. 75(4)(g); CIHL, Rule 100 –
examination of witness
• AP I, Art. 75(4)(b); CIHL, Rule 102 – conviction only on
the basis of individual penal responsibility
• AP I, Art. 75(4)(f); CIHL, Rule 100 – right against self-
incrimination
• AP I, Art. 75(4)(h); CIHL, Rule 100 – right against double
jeopardy
• AP I, Art. 75(4)(c); CIHL, Rule 101 – right against ex post
facto law
• AP I, Art. 75(4)(c); CIHL, Rule 101 – benefit from ex post
facto law, lighter penalty
• Death penalty
• GC IV, Art. 75; AP I, Arts 76(2) and (3), and 77(5);
CIHL, Rule 134 – Not to be imposed on pregnant
women and mothers of dependent infants and
children under 18 years of age.
• GC IV, Art. 73; AP I, Art. 75(4)(j) - ny person convicted of
an offence must be advised of his judicial and other
remedies
• AP I, Art. 75(4)(i) – public pronouncement of judgment
▪ Conditions of detention
• GC IV, Art. 76(1). - In situations of belligerent occupation,
protected persons accused of offences must be detained
and, if convicted, serve their sentences within the
occupied country.
• Separation of women detainees
• Separate children accommodation and appropriate
treatment
• They must “enjoy conditions of food and hygiene
which will be sufficient to keep them in good
health,”
▪ End of detention
• GC IV, Art. 77 - At the end of an occupation, protected
persons accused of offences or convicted by the courts in
occupied territory must be handed over, with the relevant
records, to the authorities of the liberated territory.
• GC IV, Art. 37(2) - Protected persons detained in relation
to criminal offences within the territory of a party to the
conflict may ask to leave such territory as soon as they
are released.
• GC IV, Art. 6(4) - n any case, protected persons who are
detained pending penal proceedings or serving a sentence
for a criminal offence continue to benefit from the

protection of the Fourth Geneva Convention until their
final release, repatriation or return to their place of
residence, even after the end of an armed conflict.
D. Detained By Non-State Armed Groups/ Detention during NIAC
1. Lack of status and privilege

• Common Article 3(1) - the rules of IHL governing the protection of
persons deprived of their liberty for reasons related to non-
international armed conflicts are equally applicable to all persons
captured, detained or interned, regardless of their status or involve-
ment in the conduct of hostilities, and regardless of whether they
are held by a State or by non-State parties.
• In NIAC, IHL provides no privilege of combatancy granting
immunity from prosecution for lawful acts of war.
o any person having directly participated in hostilities in a
non-international armed conflict remains exposed to the full
force of the applicable national law.
o any harm caused by the governmental armed forces and
police in compliance with IHL will be justified under national
law as lawful acts of the State
o any harm caused by non-State armed groups and civilians
supporting them will generally be subject to prosecution
under the standard provisions of national law.
• AP II, Art. 6(5); CIHL, Rule 159 - At the end of hostilities, the
authorities in power “endeavour to grant the broadest possible
amnesty to persons who have participated in the armed conflict, or
those deprived of their liberty for reasons related to the armed
conflict,” with the exception of persons suspected of, accused of or
sentenced for war crimes.
2. Treatment, Conditions, Procedures
• Treatment and conditions of detention or internment
o AP II, Common Article 3 and 4 - fundamental guarantees for all
persons not or no longer taking a direct part in hostilities.
o AP II, Art. 5 - additional provisions aimed at ensuring a
minimum standard of humane treatment for persons who are
interned or detained for reasons related to a non-international
armed conflict.
▪ Provided with food, drinking water, hygiene and health
care, and protected against the weather and the dangers
arising from the armed conflict
▪ The wounded and sick must receive the medical care
required by their condition, without any distinction
among them other than on medical grounds.

▪ No persons deprived of their liberty may be subjected to
medical procedures that are not required by their state of
health or that are inconsistent with generally accepted
medical standards.
▪ Detainees and internees must be allowed to receive
individual or collective relief shipments, to practice their
religion and to receive spiritual assistance.
▪ If made to work, their working conditions and safeguards
must be similar to those enjoyed by the local civilian
population.
▪ Except when families are accommodated together, women
must be held in quarters separate from those of men and
under the immediate supervision of other women.
▪ Subject to the restrictions deemed necessary by the
competent authority, detainees and internees must also
be allowed to communicate with the world outside.
▪ Places of internment and detention must be situated at a
safe distance from the combat zone and, when they
become particularly exposed to dangers arising from the
armed conflict, evacuated, provided that such evacuation
can be carried out under adequate conditions of safety.
▪ Once persons deprived of their liberty are released, those
responsible for the decision must do what is needed to
ensure their safety.
▪ Persons whose liberty is restricted by security measures
such as house arrest, assigned residence or other forms of
surveillance not involving physical custody must be
afforded the same protections as detainees and internees
except, of course, the provisions related to the material
conditions of their detention.
• Judicial guarantees in penal proceedings
o Common Art. 3 - prohibits “the passing of sentences and the
carrying out of executions without previous judgment
pronounced by a regularly constituted court, affording all the
judicial guarantees which are recognized as indispensable by
civilized peoples.”
o AP II, Art. 6 - most fundamental fair-trial guarantees for the
prosecution and punishment of criminal offences related to the
conflict
▪ Courts adjudicating criminal cases must offer guarantees
of independence and impartiality, allow the accused to be
tried in his presence and presume his innocence until
proved guilty according to law.
▪ AP II, Art. 6 guarantees:

•Accused must be informed without delay of the
allegations against him and must be afforded all
the means and rights necessary to prepare and
conduct his defense.
• No one can be convicted of an offence except on the
basis of individual penal responsibility, and no one
can be compelled to testify against himself.
• No one can be held guilty for any act or omission
that did not constitute a criminal offence at the
time it was committed, and no heavier penalty may
be imposed than was permissible at the time of the
offence.
• Offenders must benefit from changes in the law
providing for the possibility of a lighter penalty
than was permissible at the time of the offence.
• In no case can the death penalty be pronounced on
persons who were under the age of 18 at the time of
the offence, or carried out on pregnant women or
mothers of young children.
• Any person convicted of an offence must be advised
of his judicial and other remedies.
• Procedural safeguards for internment
o While IHL governing non-international armed conflicts clearly
refers to the possibility of internment,i.e. of preventive detention
for security reasons without criminal charge, it fails to expressly
regulate internment.
o Common Article 3 encourages parties to a conflict to conclude
special agreements giving effect to all or part of the other
provisions of the Conventions in non-international armed
conflicts
o At least to the extent that they are designed to safeguard the
principles of humanity and the dictates of public conscience
referred to in the Martens Clause, they would arguably have to
be regarded as binding also in non-international armed conflicts.
o Internment must always remain a temporary measure of last
resort in non-international armed conflicts as well.
o Both IHL and human rights law complement national law in
regulating internment and other forms of security detention in
situations of non-international armed conflict.
• Transfers of detainees
o Transfer - covering any handover of a person from the control of
one belligerent party to that of another State or other authority,
regardless of whether the individual crosses an international
border.

o Third and Fourth Geneva Conventions place specific constraints
on the transfer of individuals to other States and impose
obligations to ensure their appropriate treatment after transfer.
o Detainees remain protected under the principle of non-
refoulement
▪ No person may be transferred to a country or authority
where he or she might be in danger of being subjected to
torture or other forms of ill-treatment, arbitrary
deprivation of life or persecution on account of his or her
race, religion, nationality, political opinion or membership
in a particular social group.
3. Detention by NSAG
• Distinguishing hostage-taking from other forms of detention
o when government soldiers or civilians are captured and detained
by non-State armed groups, States are often quick to accuse the
latter of hostage- taking, an act that common Article 3 prohibits
in all circumstances.
▪ Hostage-taking as defined by Rome Statute - the seizure
or detention of any person, irrespective of status,
combined with the threat to kill, injure or continue to
detain the hostage, in order to compel a third party to do,
or to abstain from doing, any act as an explicit or implicit
condition for the release (or safety) of the hostage
• Interpreting obligations of NSAG
o While a well- organized non-State armed group controlling part
of a State’s territory for a prolonged period can be expected to
respect and implement its obligations under IHL to the letter, it
may be significantly more difficult to do so for loosely organized
armed groups operating clandestinely and without any
significant control over territory or infrastructure.
o Even where such groups exercise effective control over part of a
State’s territory, it remains open to doubt whether they could
ever, as a matter of law, conduct valid judicial proceedings in
accordance with the procedural requirements of IHL.
o Non-State armed groups must provide for the basic needs of
persons detained by them to the same extent as for those of the
civilian population under their control or, in the absence of such
control, to the same extent as for those of their own members.

Module VI
Naval Warfare
“Naval warfare” is the term used to denote “the tactics of military operations
conducted on, under, or over the sea”
A. Scope of Application: Maritime Zones
Zones [SRM par. 10-12]

10. Subject to other applicable rules of the law of armed conflict at sea
contained in this document or elsewhere, hostile actions by naval forces may be
conducted in, on or over:
(a) the territorial sea and internal waters, the land territories, the exclusive
economic zone and continental shelf and, where applicable, the archipelagic
waters, of belligerent States;
(b) the high seas; and
(c) subject to paragraphs 34 and 35, the exclusive economic zone and the
continental shelf of neutral States.
Par. 34 - If hostile actions are conducted within the exclusive economic
zone or on the continental shelf of a neutral State, belligerent States
shall, in addition to observing the other applicable rules of the law of

armed conflict at sea, have due regard for the rights and duties of the
coastal State, inter alia, for the exploration and exploitation of the
economic resources of the exclusive economic zone and the continental
shelf and the protection and preservation of the marine environment.
They shall, in particular, have due regard for artificial islands,
installations, structures and safety zones established by neutral States
in the exclusive economic zone and on the continental shelf.
Par. 35 - If a belligerent considers it necessary to lay mines in the
exclusive economic zone or the continental shelf of a neutral State, the
belligerent shall notify that State, and shall ensure, inter alia, that the
size of the minefield and the type of mines used do not endanger
artificial islands, installations and structures, nor interfere with access
thereto, and shall avoid so far as practicable interference with the
exploration or exploitation of the zone by the neutral State. Due regard
shall also be given to the protection and preservation of the marine
environment.
11. The parties to the conflict are encouraged to agree that no hostile actions
will be conducted in marine areas containing:
(a) rare or fragile ecosystems; or
(b) the habitat of depleted, threatened or endangered species or other forms of
marine life.
12. In carrying out operations in areas where neutral States enjoy sovereign
rights, jurisdiction, or other rights under general international law, belligerents
shall have due regard for the legitimate rights and duties of those neutral States.
Internal waters, territorial sea, and archipelagic waters [SRM 14-22]

14. Neutral waters consist of the internal waters, territorial sea, and,
where applicable, the archipelagic waters, of neutral States. Neutral airspace
consists of the airspace over neutral waters and the land territory of neutral
States.
15. Within and over neutral waters, including neutral waters
comprising an international strait and waters in which the right of
archipelagic sea lanes passage may be exercised, hostile actions by
belligerent forces are forbidden. A neutral State must take such measures as
are consistent with Section II of this Part, including the exercise of
surveillance, as the means at its disposal allow, to prevent the violation of its
neutrality by belligerent forces.
16. Hostile actions within the meaning of paragraph 15 include, inter
alia:
(a) attack on or capture of persons or objects located in, on or
over neutral waters or territory;

(b) use as a base of operations, including attack on or capture of
persons or objects located outside neutral waters, if the attack or
seizure is conducted by belligerent forces located in, on or over
neutral waters;
(c) laying of mines; or
(d) visit, search, diversion or capture.
17. Belligerent forces may not use neutral waters as a sanctuary.
18. Belligerent military and auxiliary aircraft may not enter neutral
airspace. Should they do so, the neutral State shall use the means at its
disposal to require the aircraft to land within its territory and shall intern
the aircraft and its crew for the duration of the armed conflict. Should the
aircraft fail to follow the instructions to land, it may be attacked, subject to
the special rules relating to medical aircraft as specified in paragraphs 181-
183.
19. Subject to paragraphs 29 and 33, a neutral State may, on a non-
discriminatory basis, condition, restrict or prohibit the entrance to or passage
through its neutral waters by belligerent warships and auxiliary vessels.
20. Subject to the duty of impartiality, and to paragraphs 21 and 23-33,
and under such regulations as it may establish, a neutral State may, without
jeopardizing its neutrality, permit the following acts within its neutral
waters:
(a) passage through its territorial sea, and where applicable its
archipelagic waters, by warships, auxiliary vessels and prizes of
belligerent States; warships, auxiliary vessels and prizes may
employ pilots of the neutral State during passage;
(b) replenishment by a belligerent warship or auxiliary vessel of
its food, water and fuel sufficient to reach a port in its own
territory; and
(c) repairs of belligerent warships or auxiliary vessels found
necessary by the neutral State to make them seaworthy; such
repairs may not restore or increase their fighting strength.
21. A belligerent warship or auxiliary vessel may not extend the
duration of its passage through neutral waters, or its presence in those
waters for replenishment or repair, for longer than 24 hours unless
unavoidable on account of damage or the stress of weather. The foregoing
rule does not apply in international straits and waters in which the right of
archipelagic sea lanes passage is exercised.
22. Should a belligerent State be in violation of the regime of neutral
waters, as set out in this document, the neutral State is under an obligation
to take the measures necessary to terminate the violation. If the neutral
State fails to terminate the violation of its neutral waters by a belligerent,
the opposing belligerent must so notify the neutral State and give that
neutral State a reasonable time to terminate the violation by the belligerent.
If the violation of the neutrality of the State by the belligerent constitutes a

serious and immediate threat to the security of the opposing belligerent and
the violation is not terminated, then that belligerent may, in the absence of
any feasible and timely alternative, use such force as is strictly necessary to
respond to the threat posed by the violation.
International straits and archipelagic sea lanes [SRM 23-33]

23. Belligerent warships and auxiliary vessels and military and
auxiliary aircraft may exercise the rights of passage through, under or over
neutral international straits and of archipelagic sea lanes passage provided
by general international law.
24. The neutrality of a State bordering an international strait is not
jeopardized by the transit passage of belligerent warships, auxiliary vessels,
or military or auxiliary aircraft, nor by the innocent passage of belligerent
warships or auxiliary vessels through that strait.
25. The neutrality of an archipelagic State is not jeopardized by the
exercise of archipelagic sea lanes passage by belligerent warships, auxiliary
vessels, or military or auxiliary aircraft.
26. Neutral warships, auxiliary vessels, and military and auxiliary
aircraft may exercise the rights of passage provided by general international
law through, under and over belligerent international straits and
archipelagic waters. The neutral State should, as a precautionary measure,
give timely notice of its exercise of the rights of passage to the belligerent
State.
Transit passage and archipelagic sea lanes passage
27. The rights of transit passage and archipelagic sea lanes passage
applicable to international straits and archipelagic waters in peacetime
continue to apply in times of armed conflict. The laws and regulations of
States bordering straits and archipelagic States relating to transit passage
and archipelagic sea lanes passage adopted in accordance with general
international law remain applicable.
28. Belligerent and neutral surface ships, submarines and aircraft
have the rights of transit passage and archipelagic sea lanes passage
through, under, and over all straits and archipelagic waters to which these
rights generally apply.
29. Neutral States may not suspend, hamper, or otherwise impede the
right of transit passage nor the right of archipelagic sea lanes passage.
30. A belligerent in transit passage through, under and over a neutral
international strait, or in archipelagic sea lanes passage through, under and
over neutral archipelagic waters, is required to proceed without delay, to
refrain from the threat or use of force against the territorial integrity or
political independence of the neutral littoral or archipelagic State, or in any
other manner inconsistent with the purposes of the Charter of the United
Nations, and otherwise to refrain from any hostile actions or other activities
not incident to their transit. Belligerents passing through, under and over

neutral straits or waters in which the right of archipelagic sea lanes passage
applies are permitted to take defensive measures consistent with their
security, including launching and recovery of aircraft, screen formation
steaming, and acoustic and electronic surveillance. Belligerents in transit or
archipelagic sea lanes passage may not, however, conduct offensive
operations against enemy forces, nor use such neutral waters as a place of
sanctuary nor as a base of operations.
Innocent passage
31. In addition to the exercise of the rights of transit and archipelagic
sea lanes passage, belligerent warships and auxiliary vessels may, subject to
paragraphs 19 and 21, exercise the right of innocent passage through neutral
international straits and archipelagic waters in accordance with general
international law.
32. Neutral vessels may likewise exercise the right of innocent passage
through belligerent international straits and archipelagic waters.
33. The right of non-suspendable innocent passage ascribed to certain
international straits by international law may not be suspended in time of
armed conflict.
EEZ and Continental Shelf [SRM 34-35]

34. If hostile actions are conducted within the exclusive economic zone
or on the continental shelf of a neutral State, belligerent States shall, in
addition to observing the other applicable rules of the law of armed conflict at
sea, have due regard for the rights and duties of the coastal State, inter alia,
for the exploration and exploitation of the economic resources of the exclusive
economic zone and the continental shelf and the protection and preservation
of the marine environment. They shall, in particular, have due regard for
artificial islands, installations, structures and safety zones established by
neutral States in the exclusive economic zone and on the continental shelf.
35. If a belligerent considers it necessary to lay mines in the exclusive
economic zone or the continental shelf of a neutral State, the belligerent shall
notify that State, and shall ensure, inter alia, that the size of the minefield
and the type of mines used do not endanger artificial islands, installations
and structures, nor interfere with access thereto, and shall avoid so far as
practicable interference with the exploration or exploitation of the zone by
the neutral State. Due regard shall also be given to the protection and
preservation of the marine environment.
High seas and seabed beyond national jurisdiction [SRM 36-37]

36. Hostile actions on the high seas shall be conducted with due regard
for the exercise by neutral States of rights of exploration and exploitation of
the natural resources of the sea-bed, and ocean floor, and the subsoil thereof,
beyond national jurisdiction.

37. Belligerents shall take care to avoid damage to cables and pipelines
laid on the sea-bed which do not exclusively serve the belligerents.
Sources:
A. Key Treaties:
1.1856 Paris Declaration
2.1907 Hague Conventions VI. VII, VII, XI and XIII
3.1936 Submarine Protocol
4.1949 Geneva Convention II
B. Customary law
C. Other Instruments
- 1994 San Remo Manual
B. Classification of incidents at sea
Can an incident at sea trigger an armed conflict? And if yes, how and when?
IAC NIAC
Between two or more states Between two actors, at least one of which
is not a State
Relatively low threshold of violence High intensity of violence required
required, but these do not give rise to an
IAC:
a. Law-enforcement between States
affiliated with vessels

b. Innocent passage of foreign ships
(including warships)
c. Mistakes or actions ultra vires
High degree of organization of the
parties required
C. Conduct of Hostilities
Attacks Attacks
Sea to Land Air to Sea
Land to Sea
Sea to Air
Governed by AP I and customary IHL Governed only by customary IHL
* Art 49 (2) AP I. The provisions of this Section (Arts. 48-67) apply to any
land, air or sea warfare which may affect the civilian population, individual
civilians or civilian objects on land. They further apply to all attacks from the sea
or from the air against objectives on land but do not otherwise affect the rules of
international law applicable in armed conflicts at sea or in the air.
• Principles
1. Principle of Distinction (SRM, par. 39)
- Parties to the conflict shall at all times distinguish between
civilians or other protected persons and combatants and
between civilian or exempt objects and military objectives.
2. Def. military objectives (SRM, par. 40)
- In so far as objects are concerned, military objectives are limited
to those objects which by their nature, location, purpose or use
make an effective contribution to military action and whose total
or partial destruction, capture or neutralization, in the
circumstances ruling at the time, offers a definite military
advantage.
3. Indiscriminate attacks (SRM, par. 42 (b))
- In addition to any specific prohibitions binding upon the parties
to a conflict, it is forbidden to employ methods or means of
warfare which:
▪ (b) are indiscriminate, in that:
• (i) they are not, or cannot be, directed against a
specific military objective; or
• (ii) their effects cannot be limited as required by
international law as reflected in this document.
4. Precautions in attack (SRM, par. 46)
o With respect to attacks, the following precautions shall be
taken:

(a) those who plan, decide upon or execute an attack
must take all feasible measures to gather information
which will assist in determining whether or not objects
which are not military objectives are present in an area of
attack;
(b) in the light of the information available to them,
those who plan, decide upon or execute an attack shall do
everything feasible to ensure that attacks are limited to
military objectives;
(c) they shall furthermore take all feasible precautions
in the choice of methods and means in order to avoid or
minimize collateral casualties or damage; and
(d) an attack shall not be launched if it may be
expected to cause collateral casualties or damage which
world be excessive in relation to the concrete and direct
military advantage anticipated from the attack as a
whole; an attack shall be cancelled or suspended as soon
as it becomes apparent that the collateral casualties or
damage would be excessive.
• Protection of persons affected

- Principal Category of protected persons: Wounded, sick,
shipwreck and dead members of armed forces at sea
- Categories protected in their own right in view of their assisting
the principal category: Medical/religious personnel; medical
units; medical transports
- Categories of medical transports protected: Hospital ships,
coastal rescue craft, ships chartered for the conveyance of
medical equipment
- Principal obligations:
▪ Search for and collect persons affected;
▪ respect and protect
Protection under GCs
GC I Once put ashore, retrieved and rescued members of the wounded

enemy soldiers become protected by GC I
GC III Once they are cared for by the medical personnel of the enemy or
on hospital ships of the enemy force, they fall into enemy hands
and become simultaneously protected by GC III until their
release or repatriation
GC IV A few provisions on the protection of wounded, sick and
shipwrecked civilians

AP I AP I supplements GC II definition of wounded, sick or
shipwrecked persons to encompass all civilians as well
• “Shipwrecked” – someone who, as a result of hostilities or their direct

effects, is in peril at sea or in other waters and requires rescue. A
person in such circumstances must not commit any hostile acts.
• GC II, Art. 18 - Search for the casualties after the engagement - After
each engagement, parties to the conflict shall, without delay, take all
possible measures to search for and collect the shipwrecked, wounded
and sick, to protect them against pillage and ill-treatment, to ensure
their adequate care, and to search for the dead and prevent their being
despoiled.
Protected ships
Protected against direct attack

o Belligerent states – specially protected ships
o Belligerent states – merchant ships
o Belligerent states – government ships on non-commercial service
o Neutral states – all merchant ships
o All are subject to Belligerent’s right of visit and search
o Neutral states – all ships with sovereign immunity are not subject
belligerent’s right of visit & search
Protected ship which have lost their protection

o May be subject to measures short of attack
o May be seized by the belligerent state
▪ Enemy government ships can become booty
▪ Merchant ships – enemy or neutral – can be taken as prize
o May be directly attacked (as last resort)
Belligerent ships
Warships – submarines
▪ Qualify as warship
• Same rights and duties as per surface ships
▪ Specific duties and rights in neutral waters
Territorial Sea- Must sail on the surface and show flag
Innocent passage
Strait of Intl Normal mode (submerged)
Navigation – Transit
Passage

Archipelagic Sealane- Normal mode (submerged)
ASLP
Platform Weaponry
o Warships and auxiliaries
▪ Ship can be armed or not: no influence on “warship” status
o Other government ships
▪ Weaponry is not a defining criterion
▪ Weaponry permitted for own mission (e.g. coast guard)
▪ Debate about the type of weaponry needed at sea:
• Effective range
• Warning “splash”
• Aim at platforms rather than persons
▪ Hospital ships: no weapons allowed (only deflective means)
o Merchant vessels
▪ Weaponry may be allowed for own security (e.g. piracy)
▪ Issues about type, caliber and operators (e.g. private security)
▪ Other possible means (floodlights, water-cannons, etc.)
D. Practical aspects of compliance with IHL during naval warfare
Applying the law of Naval Warfare: The Submarine as a case study
Complying with the law:

Article 18: After each engagement, parties to the conflict shall, without
delay, take all possible measures to search for and collect the
shipwrecked, wounded and sick, to protect them against pillage and ill-
treatment, to ensure their adequate care, and to search for the dead
and prevent their being despoiled.
“The search for and collection of casualties after a naval engagement,

by the Parties to the conflict themselves, is paramount in achieving
once of the core objectives of the Convention…” Commentary to GC II.
ARA General Belgrano Attack (Falklands War)

o May 2, 1982
o Ship took less than 30 minutes to sink
o 323 lives lost
o Around 700 went into lifeboats
o 24 hours at sea
o Sub-zero temperature
o Other vessels left the scene
o The attacking submarine did not surface to collect survivors

Think big picture…
“the fact that the obligation of Article 18(1) applies to the “Party to
the conflict” as a whole is critical.
Thus, it may occur that the commander of a single warship even of an entire
naval-force considers, in a good-faith assessment, that it is impossible to
undertake, with the assets under his or her command, any of the activities
required under Article 18. This does not, however, absolve those overseeing
the commander’s operations (who will have a fuller picture of the situation
and may be able to deploy other assets) from assessing what ‘possible
measures’ can – and therefore must – be taken.”
The future of submarines

Warship?
Targeting
o Distinction
o Proportionality
o Precautions’
Autonomous?
Art. 18 compliance?
Principles of Naval Warfare
1. Traditional Principles
2. Law of neutrality
C. Means and Methods of Warfare
1. Mine warfare [SRM Par 80-92]

2. Submarine warfare
3. Blockade [SRM 93-104]

Module VII
IHL and Protection of the
National Environment
A. General rules
• Definition of terms
o “The environment”
▪ No agreed definition
▪ Concept in International Environmental Law - “both the
features and the products of the natural world and those of
human civilization”
o “The Natural environment”
▪ Constitutes the natural world together with the system of
inextricable interrelations between living organisms and their
inanimate environment, in the widest sense possible.
▪ Relates to external conditions and influences which affect the
life, development and the survival of the civilian population and
to living organisms
o “Natural environment”
▪ Includes everything that exists or occurs naturally, such as the
general hydrosphere, biosphere, geosphere and atmosphere
(including fauna, flora, oceans and other bodies of water, soil
and rocks).
▪ Includes natural elements that are or may be the product of
human intervention, such as foodstuffs, agricultural areas,
drinking water and livestock.
1. Distinction
▪ Natural environment is civilian in character
• Anthropocentric view – protected if it affects human
population
• Intrinsic view – protected regardless of effect of damage to
humans
▪ Guidelines on the Protection of the Natural Environment in
Armed Conflict [“Guidelines”], Rule 5 - No part of the natural
environment may be attacked, unless it is a military objective
Problem
True or False: An attack cannot be directed against the natural
environment.
▪ Conditions for attack:
• An attack cannot be directed against the natural
environment unless it is directed against a specific part of
it that has become a military objective. (Article 2(4) of the
1980 Protocol III to the CCW reflects this rule in the

specific context of incendiary weapons (see Rule 23 of the
present Guidelines)
Problem
How does a part of the natural environment become a military
objective?
▪ Requisites:
• The definition of a military objective can only be fulfilled
by distinct parts of the natural environment
• The distinct part of the natural environment in question
must fulfill both prongs of the definition of a military
objective, just as any object must do:
o it must, by its nature, location, purpose or use,
make an effective contribution to the military
action,
o its total or partial destruction, capture or
neutralization, in the circumstances ruling at the
time, must offer a definite military advantage.
Problem
Can a distinct part of the natural environment by its “nature”
make an effective contribution to military action?
▪ A distinct part of the natural environment will never by its
“nature” make an effective contribution to military action. This
is because the term “nature” refers to the intrinsic character of
an object, and the intrinsic character of the natural environment
is civilian.
Problem
States A and B are engaged in an IAC. State A has a base in the
Mirkwood Forest. Can State B consider the forest as a military
objective?
▪ The general concept of an “area” must not be interpreted overly
broadly such that a large expanse of forest is deemed to be a
military objective simply because combatants are located in a
small portion of it; only that portion of the forest that has been
identified as directly contributing to military action will be liable
to become a military objective, provided that the second prong of
the definition is also fulfilled.
• The ICRC’s view[is] that the contribution must be
directed towards the actual war-fighting capabilities
of a party to the conflict, and accordingly that a
contribution merely to the war-sustaining capabilities
of a party to the conflict is not sufficient to make the
object fulfill the definition of a military objective.
▪ “Definite”

• Requires that the advantage be concrete and perceptible,
and thus that those ordering or executing the attack have
concrete information as to what the advantage offered by
attacking the distinct component of the natural
environment will be
▪ “Military”
• The anticipated advantage cannot be merely political,
social, psychological, moral, economic or financial in
nature.
• Undermining national morale and political resilience is
not a military advantage.
▪ “in the circumstances ruling at the time”
• Where the destruction of a part of the natural
environment does not yet offer, or no longer offers, a
definite military advantage, the object must not be
attacked, and that an attack must cease as soon as the
military advantage is realized.
2. Proportionality (Rule 7)
• Launching an attack against a military objective which may be
expected to cause incidental damage to the natural environment which
would be excessive in relation to the concrete and direct military
advantage anticipated is prohibited.
• On the basis of its civilian character, any part of the natural
environment that is not a military objective must be protected not only
against direct attack, but also against “incidental damage”, which
must not be excessive – alone or in combination with other incidental
civilian harm – in relation to the concrete and direct military
advantage anticipated from an attack against a military objective.
• For the protection of the natural environment against incidental
damage, it is particularly important that, when assessing the
anticipated concrete and direct military advantage against the
expected incidental civilian harm, account is taken of the attack’s
indirect effects (also referred to as “reverberating”, “knock-on”,
“cascading” or “second, third or higher-order” effects) on the civilian
population and civilian objects that are reasonably foreseeable based
on an assessment of information from all sources available to the party
at the relevant time.
• This rule and the prohibition of widespread, long-term and severe
damage expressed in Articles 35(3) and 55 of Additional Protocol I,
operate differently, and both must be complied with for the attack to be
lawful. While the latter prohibits only those attacks that are intended
or expected to cause widespread, long-term and severe damage to the
natural environment, the present rule may render unlawful an attack

which would cause damage to the natural environment of lesser
gravity or magnitude.
3. Indiscriminate attacks (Rule 6)

o which are not directed at a specific military objective;
▪ The issue at stake here is not the weapon used, but how it
is used, in particular when munitions are fired blindly or
indifferently, without regard for where they are likely to
hit and for the consequences for protected persons and
objects.
o which employ a method or means of combat which cannot be
directed at a specific military objective; or
o which employ a method or means of combat the effects of which
cannot be limited as required by international humanitarian
law;
▪ and consequently, in each such case, are of a nature to
strike military objectives and civilians or civilian objects,
including the natural environment, without distinction.
4. Precautions (Rule 8)
• In the conduct of military operations, constant care must be taken to
spare the civilian population, civilians and civilian objects, including
the natural environment. All feasible precautions must be taken to
avoid, and in any event to minimize, incidental loss of civilian life,
injury to civilians and damage to civilian objects, including the natural
environment.
o Precautionary principle - lack of scientific certainty as to the
effects on the environment of certain military operations does
not absolve parties to a conflict from taking proper
precautionary measures to prevent undue damage.
B. Specific rules
1. Due regard for the natural environment in military operations [Rule 1]

• Twin Obligations: 1) Constant Care; 2) All feasible precautions
o Constant care - The principle of precautions encompasses a
general obligation to take constant care to spare civilian objects
(including the natural environment) in the conduct of military
operations
▪ “Military Operations”
• The term “military operation” is broader than
“attack” and should be understood to mean “any
movements, manoeuvres and other activities

whatsoever carried out by the armed forces with a
view to combat”.
• This obligation requires all those involved in
military operations to continuously bear in mind
the effects of those operations on the civilian
population, civilians and civilian objects, take steps
to reduce those effects as much as possible and seek
to avoid any that are unnecessary.
o “All feasible precautions”
▪ the mere fact of taking some precautionary measures
would not necessarily be enough to satisfy this obligation
as defined above; there is an obligation for parties to a
conflict to take all those precautions that are feasible in
the circumstances.
▪ a This requires parties to proactively seek out and collect
reasonably available information.
Problem
State A and State B are engaged in an IAC. Most of the hostilities
occurred in the Odos River bordering both states. Both states
took precautions not to damage the biodiversity in the River.
However, despite their precautions, Odos became a dead river,
unable to support plant and animal life as a result of toxins from
weapons used in the area. Did both states violate IHL?
▪ Conduct Not Result - This rule refers to both the
protection and the preservation of the natural
environment. Under IHL, obligations of protection are
obligations of conduct. They require parties to exercise
due diligence in the prevention of harm.
2. Prohibition against widespread, long-term and severe damage [Rule 2]

• The use of methods or means of warfare that are intended, or may be
expected, to cause widespread, long-term and severe damage to the
natural environment is prohibited.
• The conditions are cumulative, meaning that each must be present to
fulfil the threshold of harm.
• Significance: Even in cases where objects forming part of the natural
environment could otherwise be targeted lawfully as military
objectives, or could otherwise incur damage arising from a lawful
application of the principle of proportionality, this rule establishes an
“absolute ceiling of permissible destruction” that prohibits all
widespread, long-term and severe damage to the natural environment
regardless of considerations of military necessity or proportionality.
Problem

States A and B are engaged in an IAC. State B with a land area
of 2.15 square kilometers is mostly desert except for a 100 square
kilometer oasis where many of its citizens depend on for food and
water. State A attacked it causing damage estimated at that time
to last 19 years. Did State A violate the rule?
• “Widespread”
o contemplates the “scope or area affected”
▪ “Area affected”
• where the damage to the environment is intended
or may be expected to occur.
• Includes:
o all damage that is reasonably foreseeable at
the time of the use of the method or means of
warfare, based on information available from
all sources.
o includes damage caused directly by the
method or means of warfare in the very
geographical area where they are used
• Taking into account the above factors, the meaning
of the term "widespread" should be understood as
referring to damage extending to "several hundred
square kilometres".
• “Long-term”
o Additional Protocol I, "long-term" is understood to refer to
decades, as compared with the ENMOD standard of "long-
lasting", which is understood as "a period of months, or
approximately a season"
o Travaux préparatoires of AP I - 20 or 30 years "as being a
minimum".
• “Severe”
o Travaux préparatoires of AP I - Refers to the “severity or
prejudicial effect of the damage to the civilian population”
o a factor to consider when assessing the severity of damage is
prejudice caused to the health or survival of the population.
3. Prohibition of using the destruction of the natural environment as a

weapon [Rule 3]
• “Use as a weapon”
o the meaning of the term “weapon” here is akin to a tactic or
method of warfare.
o they are carried out for the specific purpose of destroying the
natural environment
o the rule does not prohibit acts such as the controlled
incineration of a specific part of a forest concealing enemy troops

or the use of water to flood an area in order to drown troops in
that area, unless those acts are carried out in violation of rules
regulating the conduct of hostilities and are furthermore carried
out for the specific purpose of seriously damaging the natural
environment.
4. Prohibition of attacking the natural environment by way of reprisal
• State parties to AP I
o Attacks against the natural environment by way of reprisal are
prohibited.
o Reprisals against objects protected under the Protocol are
prohibited, including when such objects are part of the natural
environment.
• States Parties cannot, therefore, resort to a belligerent reprisal against
the natural environment, even in circumstances when the reprisal
would otherwise be lawful (Rule 4 (A))
5. Prohibition to destroy agricultural land [Rule 10]

o RULE 10 – PROHIBITIONS REGARDING OBJECTS
INDISPENSABLE TO THE SURVIVAL OF THE CIVILIAN
POPULATION
Attacking, destroying, removing or rendering useless objects
indispensable to the survival of the civilian population is prohibited,
including when such objects are part of the natural environment.
o Expressly identified by the ICRC's 1987 commentary on
Article 55 of Additional Protocol I as parts of the natural
environment: foodstuffs, agricultural areas, drinking water
and livestock.
o Exceptions:
o these objects can be attacked, destroyed, removed or
rendered useless if they qualify as military objectives,
but only provided that this may not be expected to
cause starvation among the civilian population or force
its movement.
o “scorched earth policy" applied in defense of national
territory against invasion, which is allowed under
Additional Protocol I under specific conditions.
6. Prohibition of Military or any Hostile Use of Environmental

Modification Techniques [Rule 3(b)]
• For States party to the Convention on the Prohibition of Military or
Any Other Hostile Use of Environmental Modification Techniques
(ENMOD Convention), the military or any other hostile use of
environmental modification techniques having widespread, long-

lasting or severe effects as the means of destruction, damage or injury
to any other State Party is prohibited.
o ENMOD Convention, Art. 2 - term "environmental modification
techniques" refers to any technique for changing - through the
deliberate manipulation of natural processes - the dynamics,
composition or structure of the earth, including its biota,
lithosphere, hydrosphere and atmosphere, or of outer space.
▪ Article V(2) of the Convention defined these terms as
follows:
a) "widespread": encompassing an area on the scale
of several hundred square kilometres;
b) "long-lasting": lasting for a period of months, or
approximately a season;
c) "severe": involving serious or significant
disruption or harm to human life, natural and
economic resources or other assets.

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NOTES FOR LAW 266 – INTERNATIONAL HUMANITARIAN LAW

1. Concept and purpose

Compiled by: MEV v.1 (01-18-21) 1

3. Geneva Law and Hague Law

1) Persons taking no active part in the hostilities,

Compiled by: MEV v.1 (01-18-21) 2

a) violence to life and person, in particular

c) outrages upon personal dignity, in

d) the passing of sentences and the carrying

2) The wounded and sick shall be collected

An impartial humanitarian body, such as the

The Parties to the conflict should further

The application of the preceding provisions

o The advantage of treaty IHL is that it is relatively

Compiled by: MEV v.1 (01-18-21) 3

B. When Does IHL Apply?

Jus ad Bellum Jus in Bello

Compiled by: MEV v.1 (01-18-21) 4

2. Armed Conflict: International and Non-International

International Armed Non-International

Compiled by: MEV v.1 (01-18-21) 5

o Note 1: The incorporation of the concept of non- international

Compiled by: MEV v.1 (01-18-21) 6

o Nature of Confrontation (How existence is determined)

o Temporal and territorial scope of IAC

Compiled by: MEV v.1 (01-18-21) 7

• An international armed conflict ends with a:

• The decisive criterion must always be that the armed

Compiled by: MEV v.1 (01-18-21) 8

Compiled by: MEV v.1 (01-18-21) 9

Compiled by: MEV v.1 (01-18-21) 10

▪ When does NIAC start and end?

Compiled by: MEV v.1 (01-18-21) 11

• Armed Conflicts Subject to Foreign Intervention

o When an “internationalized conflict” is classified as IAC or NIAC

If.. IAC NIA

Compiled by: MEV v.1 (01-18-21) 12

REMEMBER: DISTINCTION -> PROPORTIONALITY -> PRECAUTION

Compiled by: MEV v.1 (01-18-21) 13

Compiled by: MEV v.1 (01-18-21) 14

Compiled by: MEV v.1 (01-18-21) 15

Compiled by: MEV v.1 (01-18-21) 16

Compiled by: MEV v.1 (01-18-21) 17

2. Civilian objects v. military objectives

Compiled by: MEV v.1 (01-18-21) 18

Compiled by: MEV v.1 (01-18-21) 19

Compiled by: MEV v.1 (01-18-21) 20

Compiled by: MEV v.1 (01-18-21) 21

Compiled by: MEV v.1 (01-18-21) 22

Compiled by: MEV v.1 (01-18-21) 23

B. Prohibited or restricted use of weapons (Means of warfare)

o St. Petersburg Declaration

Compiled by: MEV v.1 (01-18-21) 24

Compiled by: MEV v.1 (01-18-21) 25

Compiled by: MEV v.1 (01-18-21) 26

Compiled by: MEV v.1 (01-18-21) 27

3. Chemical weapons and poison

Compiled by: MEV v.1 (01-18-21) 28