Anthony Aust. Handbook of International Law

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33. 1974 UNTS 317 (No. 33757); ILM (1993) 800; UKTS (1997) 45.

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on the possession of such weapons means that their use is also banned. They specifically prohibit

their use in retaliation for an attack using them, so casting doubt on whether this would still be

possible under the Gas Protocol, as some parties have asserted.

Reprisals

A reprisal in wartime is a form of retaliation, but one which goes further than is normally permitted.

When a belligerent commits a breach of IHL, the enemy may, exceptionally, respond by action that

would normally be illegal, provided a warning has been ignored and the purpose is to stop the

breach, not to wreak vengeance. The reprisal must not target civilians or be disproportionate.

Additional Protocol prohibits certain reprisals.

Prisoners of war

The Third Geneva Convention spells out in great detail how POWs must be treated. To take a simple

example, on capture a POW can be hooded and restrained only as a temporary measure of military

necessity. The most difficult problem is that of determining under Article 4 if a person is entitled to

POW status. The principal category is that of members of the armed forces of a party to the conflict,

including militias or volunteer corps that are a part of the forces. There is also the category of

members of other militias and other volunteer corps, including ‘organised resistance movements’

belonging to a party to the conflict if they (a) are commanded by a person responsible for his

subordinates; (b) have a fixed distinctive sign recognisable at a distance; (c) carry arms openly; and

(d) conduct operations in accordance with IHL. Civilian personnel accompanying a force are also

included. If there is doubt as to whether a captured person is a POW, he enjoys the protection of the

Convention until a ‘competent tribunal’ has determined his status (Article 5).

The POW categories were enlarged by Additional Protocol , Articles 43 and 44, to cover also

irregular or resistance forces, such as those often used by national liberation movements, which do

not identify themselves

34. See Articles 51(6), 52(1), 53(c), 54(4), 55(2) and 56(4). Some parties to Protocol , including the UK,

have reserved the right in certain very limited situations to take reprisals prohibited by Article 56(4). See

the UK Ministry of Defence, The Manual of the Law of Armed Conflict, Oxford, 2004, paras.

16.16–16.18.

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by distinguishing marks, provided they are under proper command and carry arms openly when

attacking or when visible to the enemy while deploying to attack. Thus terrorists are unlikely to be

covered.

The legal status of aliens detained by US forces at Guantanamo Bay remains unclear. They

include some captured during the international armed conflict in Afghanistan that followed the

terrorist attacks in the United States on 11 September 2001; some captured during subsequent

hostilities in Afghanistan; and others detained in other countries and suspected of terrorism. What is

important is that the lawfulness of their detention, and the conditions under which they are held,

should be subjected to impartial legal scrutiny, preferably by courts independent of the executive.

Mercenaries

Because states, both developed and developing, find them useful, mercenaries have always existed,

and are now often supplied by so-called private military companies. Latterly, the legal status of

civilians employed by armed forces to carry out military or quasi-military tasks has been questioned.

Article 47 of Additional Protocol provides that a mercenary shall not have the right to be a

combatant or prisoner of war. The meaning of ‘mercenary’ is set out in a complex and cumulative

definition, the essential elements being that he is:

motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised,

by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or

paid to combatants of similar ranks and functions in the armed forces of that Party.

(Emphasis added)

The definition was taken over by the Mercenaries Convention 1989,

but for the very different

purpose of making it a criminal offence to recruit, use, finance or train mercenaries or, being a

mercenary, to participate directly in hostilities. The definition may be just adequate for the purpose

of Additional Protocol , but is not precise enough to create a criminal offence, since the

prosecution would have to prove all the elements of the definition, in particular the motivation of

private gain. The

35. See further pp. 284-5 below.

36. As to the so-called War on Terror, see p. 283 below.

37. 2163 UNTS 96 (No. 37789); ILM (1990) 89.

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Convention did not enter into force until 2001, and now has twenty-six parties.

Civilians and civilian objects

The treatment of civilians is the subject of the Fourth Geneva Convention, which addresses the

treatment of enemy aliens in the territory of a belligerent and the inhabitants of occupied territories.

They are also the subject of Additional Protocol , which adds significantly to the duty to protect

civilians and civilian objects during active hostilities. The fundamental rule expressed in Article 48

of the Protocol is that belligerents must distinguish between civilians and combatants, and between

civilian and military objectives, and direct their operations only against military objectives. The

civilian population and civilian objects must not be attacked deliberately or force be used

indiscriminately (Article 51(4)), as was done in the ‘carpet bombing’ of cities during the Second

World War. But the death or injury of civilians or damage to civilian property is not illegal if it is

accidental or unavoidable. In assessing such matters, one has to apply the rule of proportionality:

whether the effect on civilians would be excessive. ‘Military objectives’ are those which, at the time,

offer a definite military advantage if destroyed, captured or neutralised (Article 52). The bombing of

a munitions factory will therefore usually be lawful even though civilian workers will be killed, and

even if it is situated in a populated area with people living nearby. This is often described,

euphemistically, as ‘collateral damage’, and can now be lessened by the use of laser-guided,

precision missiles. The same considerations apply to strategic targets such as roads, bridges, power

stations and airports. More difficult questions are whether, and in what circumstances, civilian

officials (e.g. government ministers) or installations (civil radio transmitters) can be legitimate

military targets.

Occupied territory

Section of the Hague Regulations,

the Fourth Geneva Convention and Articles 61–78 of

Additional Protocol lay down the rights and duties of

38. See A. Aust, ‘Limping Treaties: Lessons from Multilateral Treaty-Making’ (2003) NILR 243 at

260–2.

39. Annexed to Hague Convention (1907): see Roberts and Guelff, Documents on the Laws of War, 3rd

edn, Oxford, 2000, pp. 73–84.

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a military occupant of foreign territory. The Convention governs most of the relations between the

occupant and the local population and, although it applies only for one year after the end of

hostilities, the provisions specifically applicable to occupied territory continue for so long as the

occupant governs it (Article 6). An occupant’s primary duty is to maintain public order and safety

and to ensure the basic needs of the population. Local law can be amended or suspended, but not so

that it affects legal rights, and local courts should be allowed to function. Private property must not

be confiscated. The occupant may collect taxes, but any new taxes must be for the administration of

the territory. Local nationals must not be deported, either individually or collectively.

Although the inhabitants of an occupied territory are not prohibited by IHL from resisting the

occupying forces, Article 5 of the Fourth Geneva Convention allows the occupier to try saboteurs

and others actively hostile to the occupying forces for any crimes they commit.

Palestine

The claim by Israel that the Fourth Geneva Convention applies to the occupied Palestinian territories

only de facto has been dismissed by the International Court of Justice,

which has advised that they

are under military occupation, and so subject to the limitations imposed by the Hague Regulations

and the Fourth Geneva Convention.

The Court also found that the Israeli settlements in the

occupied territory, including East Jerusalem, have been established in breach of international law,

and that the wall and its associated regime gravely infringes a number of rights under IHL and

international human rights treaties of the Palestinians living in the occupied territory which cannot

be justified by military necessity, national security or public order.

Enforcement

Although the four Geneva Conventions and Additional Protocol all require the parties to penalise

‘grave breaches’ of them (e.g. Articles 49

40. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory

Opinion, ICJ Reports (2004), paras. 90–101; ILM (2004) 1009.

41. See also UNSC Res. 242 (1967), 252 (1968), 465 (1980), 497 (1981) and 672 (1990); UNGA Res.

2253 and 2254 (1967) and 2949 ( ) (1972).

42. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Advisory

Opinion, ICJ Reports (2004), paras. 123–37.

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and 50 of the First Geneva Convention), they deal with only certain war crimes. But all war crimes

are crimes for which there is universal jurisdiction, so that any state can prosecute them.

The most

authoritative, and convenient, list of war crimes, committed in international or internal armed

conflicts, is now to be found in the ICC Statute.

The defence that an accused was acting under the

order of a superior is available only in very limited circumstances.

Since the end of the Cold War, the UN Security Council has had a considerable role in the

enforcement of IHL. Numerous (legally binding) resolutions adopted under Chapter of the Charter

reaffirmed the duty of belligerents to observe IHL, and authorised the use of force to protect

civilians from grave and persistent breaches of IHL.

The Security Council also established the

International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal

for Rwanda to try persons for war crimes and crimes against humanity.

UN forces

The members of the armed forces of a UN Member deployed on a UN peacekeeping mission are

entitled to use force in self-defence. If under Chapter the Security Council authorises Members to

use force against another state (as in Resolution 660 (1990)), their armed forces will be taking part

in an international armed conflict and IHL will apply to them. If they are on a UN peace-enforcing

mission, IHL will still apply to them. Although the United Nations and other international

organisations are not parties to IHL treaties, the armed forces of Members made available for UN

missions remain bound by IHL and will benefit from its protection.

Problems may, however, arise

if a Member is part of a ‘coalition’ but is not party to a particular IHL treaty, such as one of the

Additional Protocols, if other members of the coalition are bound by it and it is not clear if the

relevant provision is also customary international law. This problem can be alleviated if the coalition

forces operate under common

43. See p. 45 above.

44. Article 8 and the Elements of Crimes. See also p. 277 below.

45. See p. 273 below. For the historical background see Oppenheim, 7th edn, vol. , pp. 568–82.

46. And see p. 226 above.

47. See p. 273 below.

48. See common Article 1(1) of the Geneva Conventions; the UN Secretary-General’s Bulletin on

Observance by UN Forces of IHL 1999 (in Roberts and Guelff, Documents on the Laws of War, 3rd edn,

Oxford, 2000, pp. 725–30); and the UK Ministry of Defence, The Manual of the Law of Armed Conflict,

Oxford 2004, paras. 14.1–14.16.

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rules of engagement. Enforcement by means of disciplinary or criminal proceedings against

members of such armed forces is a matter for the Member concerned.

International Committee of the Red Cross

The ICRC promoted the 1864 and all subsequent Geneva Conventions and the Additional Protocols.

It plays a central role in the practical implementation of IHL, in particular under the Geneva

Conventions. The role of the ICRC is particularly important for helping to safeguard the health and

welfare of POWs, including tracing them, visiting them and enabling them to correspond with their

families,

as well as the welfare of civilians in occupied territory. Common Articles 9 and 10

(Articles 10 and 11 in the Fourth Geneva Convention) recognise the humanitarian role of the ICRC

and provide that it may, with the consent of the parties to the conflict, act as the Protecting Power of

one or both of them, and this is usually done. The role of Protecting Power (which can also be done

by states) is to safeguard the interests of the parties to the conflict. The ICRC would therefore act as

an impartial go-between, passing messages, making representations and suchlike.

49. See also p. 196 above.

50. See, in particular, Articles 54, 56, 74–77, 79–81 and 122–126 of the Fourth Geneva Convention. The

ICRC headquarters are well worth a visit.