Chapter IX of the ICRC

Reporters:

Julie Grace Y. Batislaon

Czarina Letecia E. Rubica

Conduct of Hostilities

Distinction between the Hague and

the Geneva Conventions

Hague Geneva

1st: Prevention of war, rules for

international mediation and arbitration of

disputes; framework for mediation

through a neutral power; established

rules for international commissions of

inquiry and Permanent Court of

Arbitration at the Hague.

2nd: wear distinguishable insignia, serve

under competent officers, humane

treatment of prisoners of war;

prohibition against sacking of enemy

territory

3rd: Hospital Ships

1st: InternationalTreaty establishing rules

and protection for the wounded and

medical personnel.

2nd: Chemical and Biological Warfare

3rd: Expansion of rules on prisoners of

war

Governing Law: Art. 48, Protocol 1

Protection of Civilian Population

against Efforts of Hostilities

Art. 48, Protocol 1

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.

Field of Application (Art. 49)

1. Acts of Violence in Defense and Offense;

2. This is applicable no matter where, including

attacks on party’s own territory held by

enemy control;

3. Applicable to attacks from land, air or sea

affecting civilian population on land

Basic Principles

1. Only military objectives may be attacked;

2. Attacks directed at military objectives are

prohibited if the expected incidental effects on the

civilian population are excessive;

3. Even when an attack directed at a military

objective is not expected to have excessive effects

on civilian population, all feasible precautionary

measures must be taken to minimize those effects.

Military Objectives

Rule 8, CIHL

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

partial or total destruction, capture or

neutralization, in the circumstances ruling at the

time, offers a definite military advantage.

Art. 52(2), PI

An object must cumulatively meet two

criterias to be a military objective.

1. Nature, location, purpose or use;

2. The object’s destruction, capture or

neutralization has to offer a definite military

advantage for the attacking side.

Definition of a civilian population Art. 50, PI

1. A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 A (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.

2. The civilian population comprises all persons who are civilians.

3. The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.

Why is the distinction between

combatants and civilians important?

Effect of presence of combatant

among civilian population

Art. 50(3)

“The presence within the civilian population of

individuals who do not come within the

definition of civilians does not deprive the

population of its civilian character.”

Prohibited Attacks

Prohibited Attacks

1. Civilian population;

2. Civilian Objects;

3. Indiscriminate Attacks

4. Reprisals against civilians or civilian objects;

5. Use of weapons which cannot be directed at a

specific military objective;

6. Treating different military objectives as a single

military objective

Principle of Proportionality

The harm caused to civilians or civilian

property must be proportional and not

excessive in relation to the concrete and

direct military advantage anticipated by an

attack on a military objective.

Principle of Proportionality

"Under international humanitarian law and the Rome Statute,

the death of civilians during an armed conflict, no matter

how grave and regrettable does not constitute a war crime....

even when it is known that some civilian deaths or injuries

will occur. A crime occurs if there is an intentional attack

directed against civilians (principle of distinction) or an

attack is launched on a military objective in the knowledge

that the incidental civilian injuries would be clearly excessive

in relation to the anticipated military advantage (principle of

proportionality)." — Luis Moreno-Ocampo, Chief

Prosecutor, International Criminal Court.

Loss of Protection

Art. 51(3)

Civilians shall enjoy the protection afforded by

this section, unless and for such time as they

take a direct part in hostilities.

Interpretive Guidance by ICRC

Interpretive Guidance by ICRC

1. Who is covered as a civilian by the rule

prohibiting attacks?

2. What conduct amounts to direct

participation?

3. What is the duration of loss of protection?

4. What are the precautions to be taken, and

what are the types of protection afforded in

case of doubt?

Interpretive Guidance by ICRC

5. What are the rules on attack on persons who

take direct part in the hostilities?

6. What are the consequences of regaining

protection?

Who is covered as a civilian by the rule

prohibiting attacks?

Most controversial among the 6 questions;

In international armed conflicts, the

treaty law provides that if a person is not a

combatant, he or she must not be attacked

Exception: He/she attacks

Who is covered as a civilian by the rule

prohibiting attacks?

In non-international armed conflicts,

persons taking no active part in the

hostilities, including members of the armed

forces who have laid down their arms or

otherwise hors de combat.

However, they must first take additional

actions to disengage from combat.

Conclusion on “who is covered as a

civilian by the rule prohibiting attacks”

Not civilians:

1. Direct participation: if the person remains a

member of the group or keeps a fighting

function in such group; OR

2. Members of armed groups whose specific

function is to continuously perform acts

which constitute as direct participation

Note: membership =/= simple affiliation

Direct Participation

Factors:

1. Threshold of harm;

2. Direct causation;

3. Belligerent Nexus

Civilian Population must not shield

military objectives.

Civilian Population not be used to

shield military objectives Art. 51(7)

The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.

Civilian population not to be used to

shield military objectives

Test: Whether the intermingling between

civilian and combatant and/or military

objectives is the result of defender’s

specific intention to obtain protection for

its military forces or objectives or simply

lack of care for the civilian population?

What is the status of these voluntary

human shields?

Protected Objects

Protected Objects

Civilian objects

One failing to contribute to

military action whose

destruction would cause no

military advantage

Special Protection

1. These objects should not be used for

military purpose by those who control them

and should never become military objects;

2. Even if civilian objects are effectively used

for military purposes, specially protected

objects may only be attacked in restricted

circumstance and following precautionary

measures.

What are specially protected objects?

1. Civilians [Art. 52(1)]

2. Cultural objects (Art. 53)

3. Objects indispensible for survival of civilian population (Art. 54)

4. Works and Installations containing dangerous forces (Art. 56)

5. Military Objectives near (4);

6. Prohibition on means and methods of warfare with potential to cause widespread, long-term and severe damage to the environment [Art 35(3)]

7. Medical Equipment and Transport

Cultural Objects

These are movable or immovable properties

of great important to the cultural heritage of

every people and buildings whose main and

effective purpose is to preserve or exhibit

movable cultural property.

However, there is a waiver of immunity of

cultural objects when there is imperative

military necessity.

Imperative Military Necessity

Rule 39

The use of property of great importance

to the cultural heritage of every

people for purposes which are likely

to expose it to destruction or damage

is prohibited, unless imperatively

required by military necessity.

Imperative Military Necessity

It considers that a waiver on the basis of imperative

military necessity may only be invoked to use

cultural property for purposes which are likely to

expose it to destruction or damage “when and for as

long as no choice is possible between such use of the

cultural property and another feasible method for

obtaining a similar military advantage”. The Protocol

further requires that the existence of such necessity

be established at a certain level of command.

Precautionary Measures in Attack

Precautionary Measures in Attack

Attacks on military objectives must be cancelled if it

becomes apparent that these types of attack are

prohibited.

If there are several alternatives, the one causing least

damage must be chosen.

It must be refrained from attacking when incidental

loss of civilian life or destruction of civilian

objectives outweighs the military advantage of such

attack.

Factors affecting precautionary

measures in attack

1. Importance and urgency of destroying a target;

2. Range, accuracy and effect radius of weapon;

3. Proximity of civilians;

4. Possible release of hazardous substances;

5. Protection of party’s own forces;

6. Available feasible alternatives;

7. Necessity to keep certain weapons available for future

attacks on targets which are militarily more important and

more risky for civilians.

Rules on Precautionary Measures in

Attack

1. An attack must be cancelled if it becomes

apparent that it is prohibited [Art. 57(2)(b)]

2. Advance warning must be given, except if

circumstances do not permit [Art. 57(2)(c)]

3. When a choice is possible, the objective

causing the least danger to the civilian

population must be chosen [Art. 57(3)

Rules on Precautionary Measures in

Attack

4. There is an additional obligation for those

who plan or decide on attack [Art. 57(2)(a)]

Verify that objective is not illicit;

Choose means and methods avoiding or

minimizing civilian losses;

Refrain from attacks causing disproportionate

civilian losses.