What the rules governing the use of force current

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INTERNATIONAL HUMANITARIAN LAW A COMPREHENSIVE INTRODUCTION

Nils Melzer Coordinated by Etienne Kuster

International Committee of the Red Cross 19, avenue de la Paix 1202 Geneva, Switzerland T +41 22 734 60 01 F +41 22 733 20 57 E-mail: [email protected] www.icrc.org © ICRC, November 2019

INTERNATIONAL HUMANITARIAN LAW A COMPREHENSIVE INTRODUCTION

ACKNOWLEDGMENTS

The ICRC expresses its sincere thanks to Dr. Nils Melzer, the author of this handbook and the Human Rights Chair at the Geneva Academy of International Humanitarian Law and Human Rights.

Our appreciation also goes to Etienne Kuster, adviser for relations with academic circles at the ICRC, who coordinated the preparation, publication and translation of the handbook, with support from ICRC staff, at headquarters in Geneva and in the field.

We are grateful to the following people for their observations and comments: Jean-François Quéguiner, Laurent Colassis, Tristan Ferraro, Laurent Gisel, Kathleen Lawand, Louis Maresca, Alexander Breitegger, Ramin Mahnad, Helen Obregón Gieseken, Cristina Pellandini, Antoine Bouvier, Jean-Marie Henckaerts, Lindsey Cameron, Gaétane Cornet, Laurence Brunet-Baldwin, Gabriel Valladares, Alexandra Cahen, Matthieu Niederhauser, Anna Chiapello, Margherita D’Ascanio, Marica Tamanini, Joëlle Germanier, Anne Quintin, Mariya Nikolova, Ellen Policinski, and everyone in the Law and Policy Forum.

Thanks are also owed to Helen Durham, Director of Law and Policy at the ICRC, Vincent Bernard, head of the Law and Policy Forum, Nicole Martins-Maag, deputy head of the Forum, Alexandra Boivin, head of the ICRC’s delegation in Washington, and Juliane Garcia-Ravel, research officer.

TABLE OF CONTENTS

Acronyms and abbreviated titles ………………………………………………….. 6 Foreword ……………………………………………………………………………………… 9 Introduction ………………………………………………………………………………. 12

CHAPTER 1 INTRODUCTION TO IHL ………………………………………………………….15 I. Definition and core principles of IHL ………………………………. 17 II. Sources of IHL …………………………………………………………………. 21 III. IHL in the international legal order ………………………………….. 26 IV. A brief history of IHL and some contemporary

challenges ………………………………………………………………………… 34

CHAPTER 2 SCOPE OF APPLICATION OF IHL ……………………………………………..49 I. Relevance and definition of the term “armed conflict” ……… 51 II. Distinction between international

and non-international armed conflict ………………………………. 53 III. International armed conflicts …………………………………………… 54 IV. Belligerent occupation ……………………………………………………… 60 V. Non-international armed conflicts …………………………………… 66 VI. Armed conflicts subject to foreign intervention ……………….. 73

CHAPTER 3 THE CONDUCT OF HOSTILITIES …………………………………………….77 I. Protection of the civilian population ……………………………….. 80 II. Protection of civilian objects, and of certain areas

and institutions ………………………………………………………………… 91 III. Proportionality, precautions and presumptions ……………… 100 IV. Methods of warfare ………………………………………………………… 104 V. Means of warfare ……………………………………………………………. 109 VI. Specific issues arising in non-international

armed conflicts ………………………………………………………………. 125

CHAPTER 4 THE WOUNDED AND SICK AND THE MEDICAL MISSION ……131 I. The wounded, the sick and the shipwrecked …………………… 134 II. Medical and religious personnel …………………………………….. 137 III. Medical units and transports …………………………………………. 142 IV. Hospital, safety and neutralized zones ……………………………. 149 V. The distinctive emblems …………………………………………………. 151 VI. The missing and the dead ……………………………………………….. 155 VII. Specific issues arising in non-international

armed conflicts ………………………………………………………………. 162

CHAPTER 5 DETENTION AND INTERNMENT ……………………………………………169 I. The relevance of “status” in the context of detention ………. 171 II. Internment of prisoners of war ………………………………………. 178 III. Internment and detention of civilians …………………………….. 190 IV. Specific issues arising in non-international

armed conflicts ………………………………………………………………. 208

CHAPTER 6 CIVILIANS IN ENEMY-CONTROLLED TERRITORY ………………… 219 I. General protection of civilians in the power

of the enemy …………………………………………………………………… 222 II. Enemy nationals in the territory of a belligerent party ……. 233 III. Inhabitants of occupied territories ………………………………….. 237 IV. Humanitarian assistance ………………………………………………… 250 V. Specific issues arising in non-international

armed conflicts ………………………………………………………………. 255

CHAPTER 7 IMPLEMENTATION AND ENFORCEMENT OF IHL …………………263 I. Factors influencing compliance with IHL ………………………. 265 II. Duty of belligerents “to respect and to ensure respect” …… 268 III. Ensuring respect at international level ……………………………. 274 IV. State responsibility and reparations ……………………………….. 281 V. Individual criminal responsibility

for violations of IHL ……………………………………………………… 285 VI. Judicial enforcement ………………………………………………………. 293 VII. Non-judicial enforcement ………………………………………………. 298 VIII. Specific issues arising in non-international

armed conflicts ………………………………………………………………. 305

CHAPTER 8 THE SPECIAL ROLE OF THE ICRC …………………………………………..311 I. Purpose and status of the ICRC ……………………………………… 313 II. Legal basis for ICRC action ……………………………………………. 316 III. The ICRC as the “guardian of IHL” …………………………………. 322

INDEX …………………………………………………………………………… 332

REFERENCES ………………………………………………………………… 352 ICRC learning tools and publications……………………………………….. 352 ICRC databases ………………………………………………………………………… 354 ICRC newsletters ……………………………………………………………………… 355

6 ACRONYMS AND ABBREVIATED TITLES

ACRONYMS AND ABBREVIATED TITLES Additional Protocol I (AP I)

Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977

Additional Protocol II (AP II)

Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non- International Armed Conflicts (Protocol II), 8 June 1977

Additional Protocol III (AP III)

Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III), 8 December 2005

1977 Additional Protocols Additional Protocols I and II

Amended Protocol II to the Convention on Certain Conventional Weapons

Protocol II to the Convention on Certain Conventional Weapons of 10 October 1980 (Amended Protocol II), as amended on 3 May 1996

Anti-Personnel Mine Ban Convention

Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 18 September 1997

Biological Weapons Convention Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 10 April 1972

Chemical Weapons Convention Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, 13 January 1993

CIHL Customary International Humanitarian Law as identified in the ICRC Study

Common Article 1 Article 1 common to the Geneva Conventions of 12 August 1949

Common Article 2 Article 2 common to the Geneva Conventions of 12 August 1949

Common Article 3 Article 3 common to the Geneva Conventions of 12 August 1949

Convention against Torture Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984

Convention on Certain Conventional Weapons

Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, 10 October 1980

ECHR European Court of Human Rights

ENMOD Convention Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, 10 December 1976

ACRONYMS AND ABBREVIATED TITLES 7

1949 Geneva Conventions (GC I, II, III and IV)

Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949 (First Geneva Convention) Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949 (Second Geneva Convention) Convention (III) relative to the Treatment of Prisoners of War, 12 August 1949 (Third Geneva Convention) Convention (IV) relative to the Protection of Civilian Persons in Time of War, 12 August 1949 (Fourth Geneva Convention)

Geneva Gas Protocol Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, 17 June 1925

Hague Convention No. V Convention No. V respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, 18 October 1907

Hague Convention No. XIII Convention No. XIII concerning the Rights and Duties of Neutral Powers in Naval War, 18 October 1907

Hague Convention on Cultural Property

Convention for the Protection of Cultural Property in the Event of Armed Conflict, 14 May 1954

1899 Hague Declaration concerning Asphyxiating Gases

Declaration (IV,2) concerning Asphyxiating Gases, 29 July 1899

1899 Hague Declaration concerning Expanding Bullets

Declaration (IV,3) concerning Expanding Bullets, 29 July 1899

Hague Regulations Convention No. IV respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, 18 October 1907

IACHR Inter-American Commission on Human Rights

ICC International Criminal Court

ICJ International Court of Justice

ICJ Statute Statute of the International Court of Justice annexed to the Charter of the United Nations, 26 June 1945

ICRC International Committee of the Red Cross

ICTY International Criminal Tribunal for the former Yugoslavia

ICTR International Criminal Tribunal for Rwanda

International Federation International Federation of Red Cross and Red Crescent Societies

IHL International humanitarian law

IRRC International Review of the Red Cross

Movement International Red Cross and Red Crescent Movement

8 ACRONYMS AND ABBREVIATED TITLES

National Societies National Red Cross or Red Crescent Societies

NATO North Atlantic Treaty Organization

Protocol I to the Convention on Certain Conventional Weapons

Protocol I to the Convention on Certain Conventional Weapons of 10 October 1980, on Non-Detectable Fragments (Protocol I), 10 October 1980

Protocol II to the Convention on Certain Conventional Weapons

Protocol II to the Convention on Certain Conventional Weapons of 10 October 1980, on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II), 10 October 1980

Protocol III to the Convention on Certain Conventional Weapons

Protocol III to the Convention on Certain Conventional Weapons of 10 October 1980, on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III), 10 October 1980

Rome Statute Rome Statute of the 17 July 1998

St Petersburg Declaration Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, 29 November / 11 December 1868

Study on customary IHL ICRC study on customary international humanitarian law

UN United Nations

UN Charter Charter of the United Nations, 26 June 1945

FOREWORD 9

FOREWORD

In the modern world, rapid developments in science and technology, and polarized power relations, may call into question the law's ability to adapt itself to regulate human conduct, especially in the most dramatic circumstances of war. However, even in this era of global change and scientific progress, the fun- damental idea behind the rules and principles of international humanitarian law (IHL) – that even wars have limits – is not one we seek to challenge. While we must turn to the past to understand their importance, we must also con- sider the future to make sure IHL rules and principles will continue to provide the best possible protection to persons affected by armed conflicts. Combining 150 years of humanitarian action in the field and a universal mandate to work for the implementation and development of IHL, the International Committee of the Red Cross (ICRC) remains committed to pursuing this aim. In light of this institutional commitment, how does the publication of this new text- book, International Humanitarian Law: A Comprehensive Introduction, offer a response to contemporary challenges in warfare? What is the added value of this textbook for readers and for the ICRC?

International Humanitarian Law: A Comprehensive Introduction aims to promote and strengthen knowledge of IHL among academics, the judiciary, weapon-bearers, the staff of humanitarian non-governmental organizations and international organizations, and media. This textbook presents contem- porary issues related to IHL in an accessible and comprehensive manner, in line with the ICRC’s reading of the law. Thanks to its particular format and style, this book is not exclusively intended for lawyers; it also aims to meet the needs of persons approaching IHL for the first time and interested in con- flict-related matters. Our hope is that a better understanding of the way IHL applies and regulates contemporary armed conflicts can help enhance protec- tion for the lives and dignity of people affected by violence.

In today’s world, IHL is being debated and challenged on many levels. At the factual level, the features of contemporary armed conflicts present a challenge. These features include: an increase in asymmetric conflicts, the involvement of one or more third States’ armed forces in local conflicts crossing national borders, and the proliferation and fragmentation of armed parties. These factors have appeared at times to challenge the faithful application of IHL. Moreover, in the aftermath of 11 September 2001, both the multiplication of terror attacks deliberately targeting civilians, and overly permissive or restrictive interpretations of IHL to achieve policy objectives, have tended to undermine the very object and purpose of IHL.

10 FOREWORD

A further challenge lies in the growing complexity of the interplay between IHL and other bodies of law, such as human rights law or international crim- inal law, which, despite all similarities, are built on different rationales. The lack of clarity deriving from the overlap between those bodies of law, com- bined with the resulting jurisprudential and doctrinal interpretations, has at times been used as a pretext to lower the level of legal protection during armed conflict. In the context of the fight against terrorism, for example, we have seen references being made to IHL in order to lower the threshold for the use of force, and derogations under human rights law used as an argument to lower the protection afforded to detainees. A further consequence of these developments has been the increased sophistication of legal interpretations moving the law too far away from the reality on the ground.

In parallel, new technologies have entered the modern battlefield, giving rise to new questions that urgently need practical answers. While there can be no doubt that IHL applies to new weapons and more generally to the use of new technologies in warfare, new means and methods pose new legal and practical questions. Cyberspace has potentially opened up an altogether different theatre of war that needs to be explored. The growing reliance on remote-controlled weapon systems, such as drones, raises issues regarding, inter alia, the geo- graphical scope of the battlefield, the applicable legal framework and account- ability. Automated weapons, along with the above-mentioned legal concerns, raise additional ethical questions that deserve attention.

All of these challenges and other contemporary issues are addressed in this textbook, in an attempt to take stock of and provide answers to recent devel- opments involving both facts and legal interpretations. In that regard, Interna- tional Humanitarian Law: A Comprehensive Introduction has greatly benefited from Dr Nils Melzer’s combination of field experience and legal expertise as a former ICRC delegate and legal adviser. I would like here to express my deep gratitude to him for having associated his rich experience with his expert knowledge of the law to give this textbook its unique flavour, and to my ICRC colleagues for coming along so enthusiastically on the journey.

IHL, as a branch of law, cannot remain disconnected from the realities to which it is meant to apply, as it aims “simply” to limit the consequences of war; and its capacity to adapt to new circumstances and challenges should never be underestimated.

FOREWORD 11

I sincerely hope that International Humanitarian Law: A Comprehensive Introduction can make the law and the ICRC's legal and operational perspec- tives more accessible to the reader, provide a useful starting point to delve in greater depth into particular topics, and prompt concrete action to improve the protection of victims of armed conflicts.

Dr Helen Durham Director International Law and Policy International Committee of the Red Cross

12 INTRODUCTION

INTRODUCTION

From the dawn of history to the present day, the scourge of war has brought unspeakable horror, suffering and destruction to millions of people, com- batants and civilians alike. Entire generations have been maimed and traumatized by violence, loss, deprivation and abuse. Families have been torn apart and dispersed, livelihoods destroyed and the hopes of countless men, women and children shattered. While war may have been idealized in heroic tales of liberation, revolution and conquest, no one who has actually experienced the reality of armed conflict can escape being deeply shaken, tormented and destabilized – for as much as war is exclusively human, it is also inherently inhumane. It was the appalling agony and desperation of the victims of war that gave birth to international humanitarian law (IHL), a body of law conceived on the battlefields of the past and present to alleviate human suffering in situations of armed conflict. Today, the 1949 Geneva Conventions are the most widely ratified treaties on the planet, a fact that speaks not only to the practical relevance of IHL, but also to the universal authority of the humanitarian principles it promotes.

This book offers a comprehensive introduction to IHL. It provides military and humanitarian personnel, policymakers and academics with a basic but complete understanding of the rationale and specific characteristics of IHL, and of its place and function within the landscape of contemporary inter- national law. In dealing with the various issues, this book does not engage in overly technical discussions or heavily footnoted research, nor does it purport to systematically reflect all academic views on the matter. Rather, each of its eight chapters endeavours to cover a particular topic from the ICRC’s perspective while remaining accessible in terms of style and sub- stantive depth. Individual chapters can be consulted separately, by topic, or in conjunction with others. They can be used to acquire basic knowledge, to design courses, training tools and individual lectures, or simply for quick reference thanks to the “In a nutshell” sections summarizing the content at the outset of each chapter.

As a general rule, footnote references are restricted to direct legal sources and selected key ICRC reference documents. In terms of legal sources, systematic reference is made not only to treaty law, but also to the ICRC study on customary IHL. Where appropriate, “To go further” sections at the end of a passage or chapter guide the reader towards more specialized or detailed literature, to related e-learning tools and, in particular, to relevant documents and cases discussed in the ICRC’s reference work How Does Law Protect in War? Moreover, thematic “Textboxes” focusing on specific law and policy initiatives link the substantive discussion of a particular topic

INTRODUCTION 13

to the latest practical developments in that area of the law. Thanks to this approach, the book covers the subject matter of IHL comprehensively but remains comparatively short, straightforward and to the point.

In terms of substance, the book takes only a cursory look at the historical development of IHL and instead focuses on outlining the current state of the law and the legal and practical challenges arising from contemporary situations of armed conflict. After two introductory chapters presenting the basic characteristics of IHL, its interrelation with other legal frameworks (Chapter 1) and its temporal, personal and geographical scope of application (Chapter 2), four substantive chapters discuss IHL governing the conduct of hostilities (Chapter 3) and the protection of the main categories of person affected by armed conflicts, namely the wounded and sick and the medical mission (Chapter 4), those deprived of their liberty (Chapter 5), and civilians in territory controlled by the enemy (Chapter 6). The book concludes with a chapter on the implementation and enforcement of IHL (Chapter 7) and another on the special role of the ICRC in this respect (Chapter 8).

A special challenge for any introduction to IHL is to properly present and compare the distinct legal regimes governing international and non-inter- national armed conflicts. While there are fundamental legal and factual dif- ferences that must be taken into account, there is also a growing substantive convergence between these two bodies of law that cannot be ignored. For the purposes of this book, it was deemed best to begin each chapter with a thorough discussion of IHL governing international armed conflicts and to conclude with a complementary section highlighting the specific legal and humanitarian issues characterizing non-international armed conflicts. Numerous footnote references to customary IHL in both parts illustrate how most of the substan- tive rules prove to be identical in both types of conflict. Read in conjunction, the various sections and chapters offer a broad but consolidated understanding of IHL as it applies to the realities of modern-day armed conflicts.

Ultimately, this book aims to become a useful everyday companion for mil- itary and humanitarian personnel, policymakers, academics and students worldwide. It is our hope that, in achieving this ambitious goal, it will help to enhance understanding and implementation of IHL and, thereby, contribute to protecting the dignity of those most exposed to the dangers of conflict – for the benefit of humanity as a whole.

Dr Nils Melzer Human Rights Chair Geneva Academy of International Humanitarian Law and Human Rights

Chapter 1 Introduction to IHL

IC R

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Next-to-last page of the Geneva Convention of 22 August 1864.

16 CHAPTER 1

Structure I. Definition and core principles of IHL II. Sources of IHL III. IHL in the international legal order IV. A brief history of and contemporary challenges for IHL

In a nutshell

➝ The purpose of IHL is to protect the victims of armed conflicts and regulate hostilities based on a balance between military necessity and humanity.

➝ IHL must be distinguished from legal frameworks that may apply in parallel but which have different objects and purpos- es, such as the UN Charter, the law of neutrality, human rights law and international criminal law.

➝ The belligerents must meet their humanitarian obligations in all circumstances, regardless of the enemy’s conduct and of the nature or origin of the conflict.

➝ Although IHL is today one of the most densely codified and ratified branches of international law, its rules can also be de- rived from custom and general principles of law.

➝ Recent political, social, economic and technological develop- ments pose fresh challenges to the fundamental achievements and faithful implementation of IHL.

INTRODUCTION TO IHL 17

I. DEFINITION AND CORE PRINCIPLES OF IHL

1. Definition of IHL 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 of war (jus in bello). 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. In short, IHL comprises those rules of international law which establish minimum standards of humanity that must be respected in any situation of armed conflict.

➝ On the distinction between the concepts of “war” and “armed conflict,” see Chapter 2.III.3.

2. Equality of belligerents and non-reciprocity IHL is specifically designed to apply in situations of armed conflict. The belligerents therefore cannot justify failure to respect IHL by invoking the harsh nature of armed conflict; they must comply with their humanitarian obligations in all circumstances.1 This also means that IHL is equally binding on all parties to an armed conflict, irrespective of their motivations or of the nature or origin of the conflict.2 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 (equality of belligerents). Moreover, the belligerents must respect IHL even if it is violated by their adversary (non-reciprocity of humanitarian obligations).3 Belligerent reprisals are permitted only under extremely strict conditions and may never be directed against persons or objects entitled to humanitarian protection.

➝ On belligerent reprisals, see Chapter 7.VII.5.

3. Balancing military necessity and humanity IHL is based on a balance between considerations of military necessity and of 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

1 GC I–IV, common Art. 1; CIHL, Rule 139. 2 AP I, Preamble, para. 5. 3 GC I–IV, common Art. 1; CIHL, Rule 140.

18 CHAPTER 1

be permissible in peacetime. On the other hand, IHL also makes clear that military necessity does not give the belligerents carte blanche to wage unre- stricted war.4 Rather, considerations of humanity impose certain limits on the means and methods of warfare, and require that those who have fallen into enemy hands be treated humanely at all times.5 The balance between military necessity and humanity finds more specific expression in a number of core principles briefly outlined below.6

4. Distinction The cornerstone of IHL is the principle of distinction. It is based on the rec- ognition that “the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy,”7 whereas “[t]he civilian population and individual civilians shall enjoy general protec- tion against dangers arising from military operations.”8 Therefore, the parties to an armed conflict must “at all times distinguish between the …

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Citations:

Bluebook 21st ed. Monica Hakimi, Why Should We Care about International Law, 118 MICH. L. REV. 1283 (2020).

ALWD 7th ed. Monica Hakimi, Why Should We Care about International Law, 118 Mich. L. Rev. 1283 (2020).

APA 7th ed. Hakimi, M. (2020). Why Should We Care about International Law. Michigan Law Review, 118(6), 1283-1306.

Chicago 17th ed. Monica Hakimi, "Why Should We Care about International Law," Michigan Law Review 118, no.

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