Prof Dale Stephens

Law of Armed Conflict (International

Humanitarian Law)
Outline
• Terminology – Latin, Acronyms, IHL and LOAC
• Characterization of Conflict
• Principles of Distinction and Proportionality
• Precautionary Principle
• Weapons Systems
IHL /LOAC - Coverage
• IHL/LOAC covers land, sea, air and now cyberspace and
outer space (Woomera Manual).
• Nanotechnology, space utilization, autonomous weapons
systems, biological enhancement.
• Treaties, Customary International Law, General
Principles, Subsidiary sources (Publicists).
• Role of Manuals
– San Remo – Naval Warfare
– Harvard – Air and Missile Warfare
– Tallinn – Cyberspace
– Adelaide/Exeter/Nebraska/UNSW – Outer Space
LOAC Framework – International Armed Conflict
• Four 1949 Geneva Conventions (1: wounded and sick in the field; 2: wounded sick and
shipwrecked at sea; 3: Prisoners of War (PW’s); 4 Occupation). Red Cross
Commentaries – 2013 onwards.
• Three Additional Protocols (1: International - 1977; 2: Non-international - 1977; 3: Red
Crystal - 2005).
• 1899 & 1907 Hague Law
• Chemical Weapons Convention
• Biological Weapons Convention
• Ottawa Anti –Personal Land Mines Convention
• Oslo Cluster Munitions Convention
• Customary International Law - ICRC Customary Law Study
• Manuals
– ‘While the rules cannot, and do not claim to be, authoritative, the depth and breadth of scholarship is
arguably sufficient to in effect set up a rebuttable presumption. It may not be the law merely because it is in
the Manual, but there would have to be a cogent argument as to why something that the Manual claims to be
a rule should not be treated as such’. Ian Henderson, ‘Manual on International Law Applicable to Air and Missile Warfare: A Review’ (2010) 49(1-2) Military Law and
the Law of War Review 169, 180

– Tallinn Manual ‘results from expert-driven process [are] designed to produce a non-binding document
applying existing law to cyber warfare. The Manual does not set forth lex ferenda, best practice or preferred
policy’ Michael N. Schmitt, Tallinn Manual On The International Law Applicable To Cyber Warfare (Cambridge University Press, 2013) 7.
Armed Conflict - Definition
• Tadic – International Criminal Tribunal for the Former Yugoslavia (1995)
– ‘[A]n armed conflict exists whenever there is a resort to armed force between
States or protracted armed violence between governmental authorities and
organised armed groups or between such groups within a State’.
• Relationship between Use of Force and IHL is mutually exclusive.
Typology of LOAC – When is there an International
Armed Conflict

• International Armed Conflict

– Article 2 – 1949 Geneva Conventions – ‘the present Convention shall apply to all
cases of declared war or of any other armed conflict which may arise between two

or more of the High Contracting Parties, even if the state of war is not recognized

by one of them…The Convention shall also apply to all cases of partial or total

occupation of the territory of a High Contracting Party, even if the said occupation

meets with no armed resistance’.

– No qualification as to scope, duration or intensity requirements. Reinforced

through ICRC Commentary which notes ‘it makes no difference how long the

conflict lasts, how much slaughter takes place, or how numerous are the

participating forces..’

– 1982 US Navy pilot shot down over Lebanon – captured by Syrian armed forces –
1977 Additional Protocol 1 – International Armed
Conflict

• Article 1(3):
– This Protocol, which supplements the Geneva Conventions of 12
August 1949 for the protection of war victims, shall apply in the
situations referred to in Article 2 common to those Conventions.
• Article 1(4):
– Article 1(4) – Additional Protocol I : Armed Conflicts in which
peoples are fighting against colonial domination and alien
occupation and against racist regimes in the exercise of their
right of self-determination.
– Very controversial, one reason a number of countries have not
ratified AP I.
– Historically based – 1970’s realities.
• Australia ratified AP I : 24 June 1991.
Legal Framework – Non International Armed Conflict

• Common Article 3 to the 1949 Geneva Conventions

• 1977 Additional Protocol II
• Parties fighting against colonial domination, alien
occupation, and against racist regimes come within the
terms of Art 1(4) of AP I and the international armed
conflict regime.
• Note – also growing range of applicable Customary
International Law.
– Targeting rules as CIL in non-international armed conflict are
the same as treaty/CIL rules in Int armed conflict (summarized
later in this presentation).
Typology of LOAC – Non International
Armed Conflict
• Common Article 3: In the case of armed conflicts 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:...’
• Tadic ICTY – ‘protracted armed violence between governmental authorities
and organised armed groups or between such groups within a State’.
• Criteria: Does the State use the military rather than the police force to deal
with the situation? What intensity of violence? What weaponry? Do the rebel
forces operate under a ‘command structure’, are they organized, what are
their goals?
Lower Threshold for Non-International Armed Conflict

• Geneva Conventions Common Article 3

– ICRC Commentary: ‘as widely as possible’
– Intensity rather than duration: Haradinaj (2008 ICTY) para.49
– US Supreme Court – Hamdan (2006): term non-international used in
contradistinction to international therefore covers all conflict which is
not international.
 AP II Threshold

• Article 1 APII applies to:

– all armed conflicts ‘which take place in the territory of a High Contracting Party
between its armed forces and dissident armed forces or other organized armed groups
which, under responsible command, exercise such control over a part of its
territory as to enable them to carry out sustained and concerted military
operations and to implement this Protocol’.
• Art 1 (2):This Protocol shall not apply to situations of internal disturbances
and tensions, such as riots, isolated and sporadic acts of violence and other
acts of a similar nature, as not being armed conflict
Status of Persons in Non-International Armed
Conflict
• Organized armed groups & individuals fighting against a
State Force = Combatants? No – Everybody is a civilian
• Those who take a direct part in hostilities (on a sporadic,
spontaneous basis): APII, Art 13(3)
• Members of dissident armed forces or other organised
groups – ‘continuous combat function’: ICRC
Interpretive Guidance (2009) may be targeted.
Protection under 1949 GC’s Common Article 3

• Humane treatment
• Non-discrimination in treatment
• Prohibition of violence including cruel treatment and
torture
• Prohibition of taking hostages
• Prohibition of outrages upon personal dignity
• Indispensable judicial guarantees
Protection under APII
• Humane treatment (including special protection of children and
women): Art 4 & 5
• Non-discrimination: Art 2
• Various fair trial requirements: Art 6
• Protection of the wounded, sick, shipwrecked, and other protected
personnel: Arts 7-12
• Protection of civilians (including principle of distinction): Art 13;
• Protection of objects indispensable to the survival of civilians: Art
14
• Protection of installations containing dangerous forces and
protection of cultural property: Arts 15 & 16
• Prohibition of forced displacement of civilians unless imperative
military needs: Art 17
General Observations
• US critique of AP II is that it does not provide a
comprehensive enough catalogue of humanitarian
protections (though note traditional interpretations
restricted its scope to internal civil war type conflicts).
• Australia has ratified AP II : 26 June 1991.
Context of International and Non-International Armed
Conflict

• Between two States (international).

• Between a State and an internal rebel group (non-international) that
evolves into an inter-State conflict through intervention by another State
on the side of the rebels (international).
• Implosion of State amidst civil war (non-international) – two
independent State entities then emerge (i.e. former Yugoslavia)
(International).
• An intervention by one State on the side of a second State and its conflict
with insurgency (non-international).
• Between two armed groups within a State (non-international at least for
CA 3 application not APII – which is based upon hostilities with a State
armed force).
IHL and other Regimes of Law
• 2011 ILC Draft Articles on the Effects of Armed Conflicts
on Treaties, Adopted by the International Law
Commission at its sixty-third session, in 2011, and
submitted to the General Assembly as a part of the
Commission’s report covering the work of that session
(A/66/10).
– Art 2 (4) Commentary of the Draft Articles acknowledges that
IHL constitutes the ‘lex specialis governing the conduct of
hostilities’.

University of Adelaide 17
Principles of Distinction and
Proportionality
Slide 18
Additional Protocol I – International Armed
Conflict
 Principle of Distinction.
 Article 48: Basic Rule - “...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.”
WHO MAY BE TARGETED?
 COMBATANTS

• Regular Armed Forces (GC3, Art 4.1)

1) Uniformed Forces
2) Except Medical Personnel
and Chaplains
• Irregular Armed Forces of a Party
(GC3, Art 4.2)
1) Under Responsible Command
2) Follow The Law Of Armed Conflict
3) Wear Distinctive Insignia
4) Carry Arms Openly

Both are privileged to conduct hostilities and receive POW status

Targeting
• May Target:
– Combatants (Regular Forces and Militias)
– Civilians taking a direct part in hostilities
• Firing weapons
• Supplying operational targeting information
• Providing tactical re-supply of munitions
• May NOT Target:
– Civilians (not taking a direct part in hostilities)
• Working in a munitions factory
• Working in a bank on military base etc.
– Chaplains
– Medical personnel
– Those who are hors de combat
• Shipwrecked
• Wounded
• Surrendered

University of Adelaide 22
Prisoner of War Status
 Third Geneva Convention – Combatants (regular and irregular)
 Must place POWs under immediate authority of a responsible
commissioned officer with copy of Convention
 Humane treatment at all times, respect for their persons and honour
 Quarters, food, clothing, medical attention, hygiene, religious observance
 Visits by Protecting Powers or ICRC – Art 126 – GCIII
 The Third Geneva Convention requires the release and repatriation of
prisoners of war without delay after the cessation of active hostilities - Art
118.
INSURGENTS AND OTHERS

 People taking an active or direct part in hostilities who are not part of
the regular forces, or other legitimate forces as defined in Article 4 of
GCIII – for such time as they undertake this participation.

 May be targeted, but have no legal right to conduct hostilities – may

be subject to domestic criminal laws.

 Individuals and members of organized armed groups (having a

combat function).

 No Prisoner of War status.

WHAT MAY BE TARGETED?
LAWFUL TARGETS =
MILITARY OBJECTIVES
AP 1 – Article 52(2):
 Objects which by their nature,
location, purpose, or use make
an effective contribution to:
Military action (Protocol I,
Canada, Germany, Australia,
UK)--or--
 War-fighting/war-
sustaining capability
(U.S. as a matter of CIL)
 AND… whose destruction, capture or
neutralization in the circumstances
ruling at the time offers a definite
military advantage.
Military Objectives
• Nature = fundamental character such as military aircraft, missiles, warships,
tanks, military fortifications.
• Location = mountain pass, bridge, jungle trail.
• Purpose = intended future use of an object, need to distinguish from ‘use’
which deals with present function, whereas purpose deals with future use i.e.
buildings being renovated for future military use, need to rely upon
intelligence.
• Use = present function, objects that on the face of it are civilian but are
converted to military use, i.e. civilian airfields/ports that take military
aircraft or warships, use of civilian broadcast facilities that are used for
military transmission.
MILITARY OBJECTIVES
DESERT STORM & IRAQI FREEDOM
• Military Leadership
• Command, Control &
Communications
• Strategic Air Defenses
• Airfields
• NBC Research & Production
• Naval Ports & Facilities
• Military Storage & Production
• Railroads & bridges
• Electrical Power
• Oil Refining & Distribution
• Republican Guard
• Scuds
• Fixed SAM sites
PROTECTION OF CIVILIANS AND CIVILIAN
OBJECTS
 Cannot attack civilians – in
case of doubt whether a
person is a civilian, then they
shall be considered a civilian
(Art. 50 API).
 Cannot attack civilian objects
(Art. 52(1) API).
 Presumption of civilian
purpose attaches to place
normally used for such (Art.
52 (3) API):
 E.g., schools, homes,
places of worship
Indiscriminate Attacks
• Art 51(4) – Indiscriminate Attacks are prohibited.
Indiscriminate attacks are:
– (a) those which are not directed at a specific military objective;
– (b) those which employ a method or means of combat which
cannot be directed at a specific military objective; or
– (c) those which employ a method or means of combat the effects
of which cannot be limited as required by this Protocol.
– and consequently, in each such case, are of a nature to strike
military objectives and civilians or civilian objects without
distinction.
• Biological and Chemical weapons effects cannot
(usually) be limited (irrespective of the fact that they are
subject to specific treaty prohibitions in any event).

University of Adelaide 30
Protection of the Environment

 API – Art 35(3) : ‘Care shall be taken in warfare to protect

the natural environment against widespread, long-term
and severe damage’.
 1977 Environmental Protection Convention – prohibits
‘the deliberate modification of the natural environment for
hostile purposes’.
 Proportionality
 Article 57 and Articles 51(5)(b) and 52 of AP I.
 ‘refrain from … launching an attack which may be expected to cause incidental
loss of civilian life, injury to civilians, damage to civilian objects or a
combination thereof which would be excessive in relation to the concrete and
direct military advantage anticipated’.
 Acceptable ratio between military value and incidental loss of life.
 Article 57 - ‘grave breach’ = war crime.
 Military Advantage – Harvard AMW Manual
 It has been suggested that “a military advantage’ can only consist in ground
gained and in annihilating or weakening the enemy armed forces.” A better
approach is to understand military advantage as any consequence of an attack
which directly enhances friendly military operations or hinders those of the
enemy. This could, e.g., be an attack that reduces the mobility of the enemy
forces without actually weakening them, such as the blocking of an important
line of communication.
 Military advantage refers only to advantage which is directly related to military
operations and does not refer to other forms of advantage which may in some
way relate to the conflict more generally. Military advantage does not refer to
advantage which is solely political, psychological, economic, financial, social,
or moral in nature. Thus, forcing a change in the negotiating position of the
enemy only by affecting civilian morale does not qualify as military advantage.
(page 45 Commentary).
 PROPORTIONALITY

 May Not Cause Suffering, Injury Or Destruction To

Civilians Or Civilian Objects “Which Would Be
Excessive In Relation To The Concrete And Direct
Military Advantage Anticipated”.
 Note that some authors combine the words
‘excessive’ with ‘extensive’ and there is an argument
made by some that there is a necessary equivalence
between these terms, however that is hard to
maintain based upon ordinary meaning of the terms.
 Proportionality
• A legal standard – incidental injury & collateral
damage balanced against ‘concrete and direct
military advantage’.
• Calibration not susceptible to any kind of
mathematical precision – always a matter of
judgment.
• Observed by most commentators that there is a
dissimilarity of factors.
• No universal military advantage ‘unit’.
 Proportionality
 Galic (ICTY)(2003): ‘[i]n determining whether an attack was
proportionate it is necessary to examine whether a reasonably well-
informed person in the circumstances of the actual perpetrator,
making reasonable use of the information available to him or her,
could have expected excessive civilian casualties to result from the
attack.’ Prosecutor v Galic [IT-98-29-T] (5 December 2003) at 58
 Gotovina (Trial 2011): Croatian Artillery firing, Court relied upon one
expert witness to construe a 200 metre artillery zone as being
adequate, 5.5% of rounds fell outside this zone causing injury and were
assessed as disproportionate. Strong criticism.
 Gotovina – ICTY( Appeal Chamber 2012) rejected trial chamber
hypothesis as having no justification for assessing proportionality
requirements. Weapons reliability, TTP’s, environmental factors.
 ICC Statute
 Art 8(2)(b)(iv) – Excessive Incidental Death,
Injury or Damage.
 ‘Intentionally launching an attack in the
knowledge that such attack will cause
incidental loss of life or injury to civilians or
damage to civilian objects …which would be
clearly excessive in relation to the concrete
and direct overall military advantage
anticipated’.
 ICC Statute Commentary
 Commentary Roy S. Lee ‘the Statute does not merely deal with
outlawing certain military conduct, but with the criminalization of
individual behaviour, which in this case will always be a matter of
appreciation under often strenuous circumstances. The term ‘clearly’
is designed to underline that a value judgment within a reasonable
margin of appreciation should not be criminalized nor second
guessed by the Court from hindsight.’ (page 148).
Precautions in Attack
• Art. 57(2)(a) AP I, requires those planning or deciding to attack must take certain
precautions:
• Attacking Forces must do everything feasible to verify that the objectives to be
attacked are military objectives.
• Take all feasible precautions in the choice of means and methods of attack with a view
to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to
civilians and damage to civilian objects.
• Attacks cancelled where apparent objective not military or disproportionate loss
expected.
• Reviewing weapons systems, times of attack, approaches to attack.
• When a choice is possible between several military objectives for obtaining a similar
military advantage, the objective to be selected shall be that the attack on which may
be expected to cause the least danger to civilian lives and to civilian objects.
• Australian Declaration on ratification of AP I re Art 57 – ‘with respect to any decision
taken by a military commander, the information actually available at the time of the
decision is determinative’.
• Precision guided weapons – obligation?
• Cyber War weapons – question of feasibility?
Non – International Armed Conflict and Targeting

• ICRC Customary Law Study (2005)

• Customary International Law
– Civilians may not be targeted unless they take a direct part in hostilities
(Rule 6).
– Parties to a conflict shall at all times distinguish between civilian objects
and military objectives and may only direct attacks against military
objectives (Rule 7).
– Military objectives under CIL have the same definition as applies to Int
Armed Conflict (nature, purpose…whose destruction etc) (Rule 8).
– Launching an attack expected to cause incidental loss and/or damage to
civilians and civilian property which would be excessive to the concrete
and direct military advantage anticipated is prohibited (Rule 14).
– All feasible precautions must be taken to avoid, and in any event to
minimise, incidental loss of civilian life, injury to civilians and damage
to civilian objects (Rule 15).

University of Adelaide 40
Weapons Prohibitions
• Art. 36 API: ‘In the study, development,
acquisition or adoption of a new weapon, means
or method of warfare, a High Contracting Party
is under an obligation to determine whether its
employment would, in some or all
circumstances, be prohibited by this Protocol or
by any other rule of international law applicable
to High Contracting Party.’
Weapons Prohibitions
• 1997 Ottawa Anti-Personnel Mines Convention Art. 1(1): ‘Each State Party undertakes
never under any circumstances: (a) To use anti-personnel mines; (b) To develop,
produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or
indirectly, anti-personnel mines; (c) To assist, encourage or induce, in any way,
anyone to engage in any way activity prohibited to a state Party under this
Convention’.
• Anti-Personnel mine is defined in Art2(1) as: a mine designed to be exploded by the
presence, proximity or contact of a person and that will incapacitate, injure or kill one
or more persons. 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.
Weapons Prohibitions
• 2008 Cluster Munitions Convention:
– Art 1(1):Each State Party undertakes never under any circumstances to: Use cluster
munitions; Develop, produce, otherwise acquire, stockpile, retain or transfer to anyone,
directly or indirectly, cluster munitions; Assist, encourage or induce anyone to engage in any
activity prohibited to a State Party under this Convention.
– Art 2(2): Cluster Munition means a conventional munition that is designed to disperse or
release explosive submunitions each weighing less than 20 kilograms, and includes those
explosive submunitions. 
Weapons Prohibitions
• Poisoned Weapons (Art 23a 1907 Hague regulations)
• Chemical Weapons (Chemical Weapons Convention 1993) note tear gas as a
weapon of war prohibition.
• Weapons the primary effect of which is to injure by fragments which in the
human body escape detection by x-ray (i.e. glass).
• Small arms projectiles calculated, or of a nature, to cause explosion on
impact with or within the human body (i.e. 50 cal munitions) (St Petersburg
declaration 1868 and customary international law – exploding munitions
or inflammable projectiles with a weight under 400 grammes).
• Laser Weapons specifically designed, as their sole combat function or as one
of their combat functions, to cause permanent blindness. (1995 Protocol IV
to CCW)
Weapons Prohibitions
• Biological Weapons (Biological Weapons Convention) includes prohibitions on
developing, stockpiling, producing acquiring etc microbial or other biological agents,
or toxins whatever their origin or method of production.
• Nuclear Weapons – no outright ban, ‘though scarcely reconcilable’ with IHL, yet it
appears cannot be ruled out where survival of a state is at stake. (ICJ Nuclear
Weapons case 1996).
• Non lethal weapons and ICRC
– Sticky foam/micro wave weapons.
Separation Thesis
• Jus in Bello (law of armed conflict/IHL) and jus ad
bellum (Use of Force).
• Security Council can name the Aggressor, can authorize
actions against an aggressor, can authorize a peace
enforcement force, can in fact (art 103 of the Charter)
decide to modify the law of armed conflict.
• Advantages and Disadvantages?

University of Adelaide 46
Conclusion
• Law of Armed Conflict – an old topic of international law –
remains a very dynamic area.
• Process of Assessment:
– Is it Armed conflict?
– Is it International or Non-International?
– Are these targets lawful?
– Have all necessary precautions been taken to verify legitimate target and
minimize harm?
– Has proportionality calculation been undertaken?
– Is the weapon to be used lawful in its application?
• Weapons Systems
– Art 36 review been undertaken?
– Is the weapon system specifically prohibited?
• IHL and Advocacy course (Adelaide Law School) – 2022.
• Adelaide, Exeter, Nebraska, UNSW-Canberra: Woomera Manual
on International Law of Military Space Operations.