Customary International Humanitarian Law: Volume 1, Rules

by Jean-Marie Henckaerts, Louise Doswald-Beck, Carolin Alvermann, Knut Dörmann, Baptiste Rolle

Overview

In 1995, the International Committee of the Red Cross, along with a range of renowned experts, embarked upon a major international study into current state practice in humanitarian law in order to identify customary law in this area. This book (and its companion, Volume 2: Practice) is the result of that study. Volume 1 is a comprehensive analysis of the customary rules of international humanitarian law applicable in international and non-international armed conflicts.

Product Details

ISBN-13:	9780521005289
Publisher:	Cambridge University Press
Publication date:	03/03/2005
Edition description:	New Edition
Pages:	690
Product dimensions:	6.81(w) x 9.69(h) x 1.81(d)

About the Author

Jean-Marie Henckaerts is Legal Advisor for the International Committee of the Red Cross, Geneva.

Louise Doswald-Beck is Secretary-General of the International Commission of Jurists in Geneva.

Read an Excerpt

Cambridge University Press
0521808995 - Customary International Humanitarian Law - by Jean-Marie Henckaerts and Louise Doswald-Beck
Excerpt

PART I

THE PRINCIPLE OF DISTINCTION

CHAPTER 1

DISTINCTION BETWEEN CIVILIANS AND COMBATANTS

Rule 1. The parties to the conflict must at all times distinguish between civilians and combatants. Attacks may only be directed against combatants. Attacks must not be directed against civilians.

Practice

Volume Ⅱ, Chapter 1, Section A.

Summary

State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. The three components of this rule are interrelated and the practice pertaining to each of them reinforces the validity of the others. The term "combatant" in this rule is used in its generic meaning, indicating persons who do not enjoy the protection against attack accorded to civilians, but does not imply a right to combatant status or prisoner-of-war status (see Chapter 33). This rule has to be read in conjunction with the prohibition to attack persons recognised to be hors de combat (see Rule 47) and with the rule that civilians are protected against attack unless and for such time as they take a direct part in hostilities (see Rule 6). Belligerent reprisals against civilians are discussed in Chapter 41.

International armed conflicts

The principle of distinction between civilians and combatants was first set forth in the St. Petersburg Declaration, which states that "the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy".¹ The Hague Regulations do not as such specify that a distinction must be made between civilians and combatants, but Article 25, which prohibits "the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended", is based on this principle.² The principle of distinction is now codified in Articles 48, 51(2) and 52(2) of Additional Protocol Ⅰ, to which no reservations have.³ According to Additional Protocol Ⅰ, "attacks" means "acts of violence against the adversary, whether in offence or in defence".⁴

At the Diplomatic Conference leading to the adoption of the Additional Protocols, Mexico stated that Articles 51 and 52 of Additional Protocol Ⅰ were so essential that they "cannot be the subject of any reservations whatsoever since these would be inconsistent with the aim and purpose of Protocol Ⅰ and undermine its basis".⁵ Also at the Diplomatic Conference, the United Kingdom stated that Article 51(2) was a "valuable reaffirmation" of an existing rule of customary international law.⁶

The prohibition on directing attacks against civilians is also laid down in Protocol Ⅱ, Amended Protocol Ⅱ and Protocol Ⅲ to the Convention on Certain Conventional Weapons and in the Ottawa Convention banning anti-personnel landmines.⁷ In addition, under the Statute of the International Criminal Court, "intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities" constitutes a war crime in international armed conflicts.⁸

Numerous military manuals, including those of States not, or not at the time, party to Additional Protocol Ⅰ, stipulate that a distinction must be made between civilians and combatants and that it is prohibited to direct attacks against civilians.⁹ Sweden's IHL Manual identifies the principle of distinction as laid down in Article 48 of Additional Protocol Ⅰ as a rule of customary international law.¹⁰ In addition, there are numerous examples of national legislation which make it a criminal offence to direct attacks against civilians, including the legislation of States not, or not at the time, party to Additional Protocol Ⅰ.¹¹

In the Kassem case in 1969, Israel's Military Court at Ramallah recognised the immunity of civilians from direct attack as one of the basic rules of international humanitarian law.¹² There are, moreover, many official statements which invoke the rule, including by States not, or not at the time, party to Additional Protocol Ⅰ.¹³ The rule has also been invoked by parties to Additional Protocol Ⅰ against non-parties.¹⁴

In their pleadings before the International Court of Justice in the Nuclear Weapons case, many States invoked the principle of distinction.¹⁵ In its advisory opinion in the Nuclear Weapons case, the Court stated that the principle of distinction was one of the "cardinal principles" of international humanitarian law and one of the "intransgressible principles of international customary law".¹⁶

When the ICRC appealed to the parties to the conflict in the Middle East in October 1973, i.e., before the adoption of Additional Protocol Ⅰ, to respect the distinction between combatants and civilians, the States concerned (Egypt, Iraq, Israel and Syria) replied favourably.¹⁷

Non-international armed conflicts

Article 13(2) of Additional Protocol Ⅱ prohibits making the civilian population as such, as well as individual civilians, the object of attack.¹⁸ The prohibition on directing attacks against civilians is also contained in Amended Protocol Ⅱ to the Convention on Certain Conventional Weapons.¹⁹ It is also set forth in Protocol Ⅲ to the Convention on Certain Conventional Weapons, which has been made applicable in non-international armed conflicts pursuant to an amendment of Article 1 of the Convention adopted by consensus in 2001.²⁰ The Ottawa Convention banning anti-personnel landmines states that the Convention is based, inter alia, on "the principle that a distinction must be made between civilians and combatants".²¹

Under the Statute of the International Criminal Court, "intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities" constitutes a war crime in non-international armed conflicts.²² In addition, this rule is included in other instruments pertaining also to non-international armed conflicts.²³

Military manuals which are applicable in or have been applied in non-international armed conflicts specify that a distinction must be made between combatants and civilians to the effect that only the former may be targeted.²⁴ To direct attacks against civilians in any armed conflict is an offence under the legislation of numerous States.²⁵ There are also a number of official statements pertaining to non-international armed conflicts invoking the principle of distinction and condemning attacks directed against civilians.²⁶ States' submissions to the International Court of Justice in the Nuclear Weapons case referred to above were couched in general terms applicable in all armed conflicts.

No official contrary practice was found with respect to either international or non-international armed conflicts. This rule is sometimes expressed in other terms, in particular as the principle of distinction between combatants and non-combatants, whereby civilians who do not take a direct part in hostilities are included in the category of non-combatants.²⁷

Alleged violations of this rule have generally been condemned by States, irrespective of whether the conflict was international or non-international.²⁸ Similarly, the UN Security Council has condemned or called for an end to alleged attacks against civilians in the context of numerous conflicts, both international and non-international, including in Afghanistan, Angola, Azerbaijan, Burundi, Georgia, Lebanon, Liberia, Rwanda, Sierra Leone, Somalia, Tajikistan, the former Yugoslavia and the territories occupied by Israel.²⁹

As early as 1938, the Assembly of the League of Nations stated that "the intentional bombing of civilian populations is illegal".³⁰ The 20th International Conference of the Red Cross in 1965 solemnly declared that governments and other authorities responsible for action in all armed conflicts should conform to the prohibition on launching attacks against a civilian population.³¹ Subsequently, a UN General Assembly resolution on respect for human rights in armed conflicts, adopted in 1968, declared the principle of distinction to be applicable in all armed conflicts.³² The Plan of Action for the years 2000-2003, adopted by the 27th International Conference of the Red Cross and Red Crescent in 1999, requires that all parties to an armed conflict respect "the total ban on directing attacks against the civilian population as such or against civilians not taking a direct part in hostilities".³³ In a resolution adopted in 2000 on protection of civilians in armed conflicts, the UN Security Council reaffirmed its strong condemnation of the deliberate targeting of civilians in all situations of armed conflict.³⁴

The jurisprudence of the International Court of Justice in the Nuclear Weapons case, of the International Criminal Tribunal for the Former Yugoslavia, in particular in the Tadić case, Martić case and Kupreškić case, and of the Inter-American Commission on Human Rights in the case relative to the events at La Tablada in Argentina provides further evidence that the obligation to make a distinction between civilians and combatants is customary in both international and non-international armed conflicts.³⁵

The ICRC has called on parties to both international and non-international armed conflicts to respect the distinction between combatants and civilians.³⁶

Rule 2. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.

Practice

Volume Ⅱ, Chapter 1, Section B.

Summary

State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.

International armed conflicts

Article 51(2) of Additional Protocol Ⅰ prohibits "acts or threats of violence the primary purpose of which is to spread terror among the civilian population".³⁷ No reservations have been made to this provision. At the Diplomatic Conference leading to the adoption of the Additional Protocols, Mexico stated that Article 51 of Additional Protocol Ⅰ was so essential that it "cannot be the subject of any reservations whatsoever since these would be inconsistent with the aim and purpose of Protocol Ⅰ and undermine its basis".³⁸ Also at the Diplomatic Conference, the United Kingdom stated that Article 51(2) was a "valuable reaffirmation" of an existing rule of customary international law.³⁹

The prohibition of acts or threats of violence aimed at terrorising the civilian population is set forth in a large number of military manuals.⁴⁰ Violations of this rule are an offence under the legislation of numerous States.⁴¹ The prohibition is also supported by official statements.⁴² This practice includes that of States not, or not at the time, party to Additional Protocol Ⅰ.⁴³ States party to Additional Protocol Ⅰ have also invoked this rule against States not party.⁴⁴

When the ICRC appealed to the parties to the conflict in the Middle East in October 1973, i.e., before the adoption of Additional Protocol Ⅰ, to respect the prohibition of "methods intended to spread terror among the civilian population", the States concerned (Egypt, Iraq, Israel and Syria) replied favourably.⁴⁵

It can be argued that the prohibition of acts or threats of violence aimed at terrorising the civilian population is further supported by the wider prohibition of "all measures of intimidation or of terrorism" in Article 33 of the Fourth Geneva Convention.⁴⁶ Prior to the adoption of this provision, the Report of the Commission on Responsibility set up after the First World War listed "systematic terror" as a violation of the laws and customs of war.⁴⁷

Non-international armed conflicts

Article 13(2) of Additional Protocol Ⅱ prohibits acts or threats of violence the primary purpose of which is to spread terror among the civilian population.⁴⁸ In addition, the prohibition is included in other instruments pertaining also to non-international armed conflicts.⁴⁹

The prohibition of acts or threats of violence aimed at terrorising the civilian population is set forth in military manuals which are applicable in or have been applied in non-international armed conflicts.⁵⁰ Violations of this rule in any armed conflict are an offence under the legislation of many States.⁵¹ There are also official statements pertaining to non-international armed conflicts invoking this rule.⁵²

It can be argued that the prohibition of acts or threats of violence aimed at terrorising the civilian population is further supported by the wider prohibition of "acts of terrorism" in Article 4(2)(d) of Additional Protocol Ⅱ.⁵³ "Acts of terrorism" are specified as war crimes under the Statutes of the International Criminal Tribunal for Rwanda and of the Special Court for Sierra Leone.⁵⁴ In his report on the establishment of a Special Court for Sierra Leone, the UN Secretary-General noted that violations of Article 4 of Additional Protocol Ⅱ have long been considered crimes under customary international law.⁵⁵

No official contrary practice was found with respect to either international or non-international armed conflicts. Alleged violations of this rule have generally been condemned by States.⁵⁶ Similarly, the UN General Assembly and UN Commission on Human Rights have adopted several resolutions condemning the terrorisation of the civilian population in the conflicts in the former Yugoslavia.⁵⁷ Furthermore, the indictments in the Đukić case, Karadžić and Mladić case and Galić case before the International Criminal Tribunal for the Former Yugoslavia included charges of terrorising the civilian population in violation of the laws and customs of war, in the first two cases as part of charges of unlawful attack.⁵⁸ In its judgement in the Galić case in 2003, the Trial Chamber found the accused guilty of "acts of violence the primary purpose of which is to spread terror among the civilian population, as set forth in Article 51 of Additional Protocol Ⅰ, as a violation of the laws or customs of war under Article 3 of the Statute of the Tribunal".⁵⁹

---

© Cambridge University Press

Table of Contents

Foreword by ICRC President Jakob Kellenberger; Foreword Judge Abdul G. Koroma; Foreword Yves Sandoz; Acknowledgements; Introduction; List of abbreviations; Part I. The Principle of Distinction: 1. Distinction between Civilians and Combatants (Rules 1–6); 2. Distinction between Civilian Objects and Military Objectives (Rules 7–10); 3. Indiscriminate attacks (Rules 11–13); 4. Proportionality in attack (Rule 14); 5. Precautions in attack (Rules 15–21); 6. Precautions against the effects of attacks (Rules 22–24); Part II. Specifically Protected Persons and Objects: 7. Medical and religious personnel and objects (Rules 25–30); 8. Humanitarian relief personnel and objects (Rules 31–32); 9. Personnel and objects Involved in a Peacekeeping Mission (Rule 33); 10. Journalists (Rule 34); 11. Protected zones (Rules 35–37); 12. Cultural property (Rules 38–41); 13. Works and Installations Containing Dangerous Forces (Rule 42); 14. The Natural Environment (Rules 43–45); Part III. Specific Methods of Warfare: 15. Denial of quarter (Rules 46–48); 16. Destruction and seizure of property (Rules 49–52); 17. Starvation and access to humanitarian relief (Rules 53–56); 18. Deception (Rules 57–65); 19. Communication with the enemy (Rules 66–69); Part IV. Weapons: 20. General principles on the use of weapons (Rules 70–71); 21. Poison (Rule 72); 22. Nuclear weapons; 23. Biological weapons (Rule 73); 24. Chemical weapons (Rules 74–76); 25. Expanding bullets (Rule 77); 26. Exploding bullets (Rule 78); 27. Weapons primarily Injuring by Non-detectable Fragments (Rule 79); 28. Booby-traps (Rule 80); 29. Landmines (Rules 81–83); 30. Incendiary weapons (Rules 84–85); 31. Blinding laser weapons (Rule 86); Part V. Treatment of Civilians and Persons Hors de Combat: 32. Fundamental guarantees (Rules 87–105); 33. Combatants and prisoner-of-war status (Rules 106–108); 34. The wounded, sick and shipwrecked (Rules 109–111); 35. The dead (Rules 112–116); 36. Missing persons (Rule 117); 37. Persons Deprived of Their Liberty (Rules 118–128); 38. Displacement and Displaced Persons (Rules 129–133); 39. Other Persons afforded specific protection (Rules 134–138); Part VI. Implementation: 40. Compliance with International Humanitarian Law (Rules 139–143); 41. Enforcement of International Humanitarian Law (Rules 144–148); 42. Responsibility and reparation (Rules 149–150); 43. Individual responsibility (Rules 151–155); 44. War crimes (Rules 156–161).

Editorial Reviews

'The study is beyond doubt impressive and the first, most wide-ranging word on this particular topic …' Leiden Journal of International Law

From the Publisher