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We will now analyze the fundamental issue of who and what can
be targeted or cannot be targeted
The law on targeting is characterized by three principles
a.) Distinction
b.) Proportionality
c.) Precaution
How are they interrelated and may impose constraints on the
belligerents when they decided to attack
Military
a.) Distinction
b.) Proportionality
c.) Precaution
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“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”
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objectives are close to each other, they can be treated as
a single military objective and the territory located between
them bombed. The proportionality of the attack will have
nonetheless to be assessed in light of the loss to civilians and
damages caused to civilian objects by such bombing.
Terrorist attacks
“the primary purpose of which is to spread terror among the
civilian population”.
However, the Tribunal specified that “they shall not […] be limited
to direct attacks against civilians but may
include indiscriminate ordisproportionate attacks” (para.
102).
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the hostilities. This category exists both in NIACs and IACs
and we will begin this section by examining them.
While all civilians who do not take part in hostilities are
protected, there is no easy answer as to how we can define
civilians. As you will see, the prevailing view is that, in
both NIACs and IACs, civilians are negatively
defined and include all those who are not members of
state or non-state armed forces. A person is
therefore either a civilian, protected against attacks or
being targetable only for such a time she or he takes part
into hostilities, or a member of armed forces, who can be
targeted at any time. The notions of (state and non-state)
armed forces and membership in those forces are therefore
crucial. The core part of this section will be devoted to
analyzing such notions.
Finally, the last part of this section will also address
another exceptional category of persons: those who are
members of armed forces but are nevertheless
protected against attacks, that category being relevant
for both NIACs and IACs.
Civilians who are not protected against attacks
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munitions factories or driving military transport vehicles are
not, but they are at risk from attacks on those military
objectives since military objectives may be attacked whether
or not civilians are present”.
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definition of civilians in NIACs is quite problematic. There
is no definition in IHL treaties.
civilians are definitely not those who are part of state armed
forces – regarding the definition of those forces, we refer to
the developments in the next subsection on civilians in IACs.
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and those fighting against these forces. Members of the state
army could only attack the fighters in reaction to the hostilities
actively engaged against them while, themselves, being
targetable at any time.
In addition and more fundamentally, this does not seem to be
in line with the notion of NIAC, which implies parties to an
armed conflict. Nor is it in line with either the wording of common
Art. 3 to the GC or AP II. Although these treaties do not define
civilians, both texts refer to armed forces of the state and non-
state parties to the conflict.
reflected in legal scholarship, case law and state practice, is
that civilians must be negatively defined: civilians are
all those who are not members of the armed
forces belonging to a party to the conflict, be that party the
state or the non-state actor. Non-state party to an armed
conflict include insurrectional, rebel, dissident or other non-
state movements. Such negative definition of the notion of
civilian implies that there are only two categories of
persons with no potential gap: a person is either a civilian
or a member of (state or non-state) armed forces.
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or irregular) state armed forces of parties to the conflict nor
participants in a levée en masse.
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adversaries to [carry out attacks] fully in accordance with their
treaty obligations and to respect the civilian population, but they
themselves must also cooperate by taking all possible precautions
for the benefit of their own population as is in any case in their
own interest”. This second type of precautionary measure is
called "precautions against the effects of attacks".
Precautions in attack
We may first identify a group three specific obligations of
precaution in attack. These are the following obligations
mentioned in Art. 57, §2, a) of API.
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Precautions against the effects of attacks
The status of the other two obligations is less clear. The ICRC
Study on customary IHL indeed concluded that these two
obligations were norms “of customary international law applicable
in international and arguably also in non-international armed
conflicts”. However, as argued by the ICTY, they should exist
(and therefore on a customary basis as they are not provided in
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IHL treaties) as a logical corollary of the principle of
distinction which is a customary norm applicable in NIACs.
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The general prohibition of weapons which have an
indiscriminate effect
“States must never make civilians the object of attack and must
consequently never use weapons that are incapable of
distinguishing between civilian and military targets”.
legal analysis? :
Perfidy
Denial of quarter
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In military terminology, it is prohibited to deny quarter.
Starvation
actually develops the more general principle according to which
“starvation of civilians as a method of warfare is prohibited”.
1. Siege warfare
2. Naval blockades
CHAPTER 6:
the obligation for states to respect and ensure respect for IHL;
a.) It is generally accepted that this obligation is part of customary
law and applies to states in any type of armed conflict, as
well as in peace time.
b.) In NIACs however, the addressees of this obligation are only
states and not armed groups.
Common art.1 to the four Geneva Conventions and Art. 1 of API must also
be read in conjunction with the law of state responsibility.
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41 of the Articles on State Responsibility). As we saw in
Chapter 2, in the case of serious violations of jus cogens rules,
all states are bound to respect negative and positive
obligations. It is worth recalling that the negative
obligations consist of a duty not to recognize a situation
created by such a serious breach as lawful and a duty of not
aiding or assisting the maintenance of that situation.
The positive obligation consists of a duty to cooperate in
order to put an end to the serious breach.
the mechanisms provided by IHL treaties including the Protecting Powers,
the Bilateral Enquiry and the International Humanitarian Fact-Finding
Commission;
the International Committee of the Red Cross;
its position within the Red Cross and Res Crescent Movement,
its main functions and
its actions as a guardian of IHL.
The three components of the International Red Cross and Red Crescent
Movement are the following:
National RC societies are regulated by the law of the state where they
operate. They act as a voluntary aid society, auxiliaries to the public
authorities of that state in the humanitarian field.
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medical personnel, organizing blood donor clinics, assisting people with
disabilities, etc.
2. The International Federation of the Red Cross and Red Crescent
Societies (IFRC)
The IFRC is composed of all the National Red Cross and Red Crescent
Societies. Its main task is to safeguard the protection of victims in situations
of emergency outside of armed conflict zones. It leads and coordinates
relief assistance missions when emergencies break out.
The ICRC was the original institution which the movement grew out
of. The ICRC describes its missions as follows:
FUNCTION ICRC
one of the most significant task of the ICRC is to
visit protected persons, in particular those
deprived of their liberty.
Guardian of IHL
and other organizations extraneous to IHL, namely NGOs and the UN.
are involved in the alleviation of the consequences of armed conflict and
carry out a wide range of humanitarian activities, including the delivery of
urgent aid to victims, mediation between belligerents, the protection of
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vulnerable persons, in particular women and children, the restructuring of
states affected by the hostilities or the return of displaced persons.
STATE RESPONSIBILITY
1. Attribution of conduct
However, states are abstract entities and cannot as such commit any
actions, let alone an action which violates international law. Violations of
international law are always committed by an individual (or a group of
individuals). As a result, a state may only be held responsible for a violation
of international law if the violation can be attributed to the state. We will
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examine several relevant mechanisms for attributing violations of
international law, in particular of IHL, to states.
3. Legal consequences
Some limited form of sanction is also provided for by the Articles on State
Responsibility.
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The first basis for states to be internationally responsible for the actions of
private individuals is when states direct or control those individuals.
According to Article 8,
1. The control must clearly go beyond the mere support taking the form of
financing, organizing,
2. training, supplying or equipping the relevant non-state actors.
3. The state must be involved in planning the operations, choosing the targets
and the provision
4. of operational support throughout.
1. Consent
2. Self-defence
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3. Counter-measures
- Firstly, that not all international rules may be violated in order to induce
compliance with other states. You may recall that it is prohibited for states
to use force to bring about compliance with international legal rules;
4. Force majeure
Force majeure is a new concept in this course, but represents a very old
idea: namely that unforeseeable events may render the performance of
an obligation impossible. Article 23 defines force majeure as
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As you can see, this is a high threshold to meet. It is reasonably likely that
changing circumstances means that one party to a bargain no longer
desires or requires the other party to perform their obligations or that a
party may wish to escape from their duty. However, this falls far short of the
standard required by force majeure. Article 23 attaches two further
conditions:
- Firstly, that the intervening issue cannot have been brought about by the
conduct of the state seeking to avoid responsibility and;
- Secondly, that if one state assumes responsibility for a risk, they cannot
escape responsibility if the risk should materialize.
5. Distress
Like force majeure, distress does not apply to situations of danger brought
about by the conduct of the state claiming the exception.
6. Necessity
- Firstly, the action must be the only way for the state to safeguard an
essential interest against a grave and imminent peril and it must not
endanger the essential interests of the state or states who are the recipient
of the obligation.
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The duty of restitution means that the responsible state is under the
obligation, insofar as it is possible, to restore the situation as it
existed prior to the breach.
The duty of compensation entails pecuniary (financial)
compensation arises when restitution is not possible. The
compensation ought to cover all financially estimable damage,
including future benefits such as profit.
The final form of reparation is satisfaction. This essentially means
that the responsible state acknowledges their responsibility, makes a
formal apology etc. It should be noted that the responsible state
cannot simply chose satisfaction in lieu of, for example,
compensation. Satisfaction only applies where the nature of the
violation means that it is unsuitable for restitution or compensation.
2. Non-injured states
3. All states
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