5 Combatants and Non-Combatants

This chapter examines the regulation of combatant status in treaty law and the many challenges for combatant status in recent armed conflicts. The primary status under international law of persons in an international armed conflict will be one of two categories of persons: ‘combatants’ and ‘civilians’. Combatants may fight within the limits imposed by international law applicable in international armed conflict, that is, they may participate directly in hostilities, which members of medical or religious personnel and ‘non-combatants’ may not do because they are excluded—by international law and by a legal act of their party to the conflict—from the authorization to take a direct part in hostilities. The chapter then discusses ‘unlawful combatants’, or what may be considered the better term: ‘unprivileged belligerents’. The term ‘unlawful enemy combatant’ was particularly used after 11 September 2001, to introduce a third category of persons which under existing law may be either combatants or civilians, but are denied such status as not fulfilling essential conditions. To use this third category in order to reduce the individual protection below the minimum standard of human rights is under no circumstances legally acceptable.

6 Means of Combat

This chapter provides an overview of treaty and customary international law rules applicable to means of combat. Belligerents do not need an authorization from international humanitarian law in relation to a specific means of combat. Rather, they are free to develop, produce, stockpile, transfer, or use any particular weapon, except for those cases in which a prohibitive rule of international humanitarian law dictates to the contrary. In order to guarantee effective implementation of the prohibition of certain means and methods of warfare, it is necessary to provide for an efficient procedure to ensure the legality of new weapons. This procedure is preventive in nature and aims at providing the belligerents with means of combat that do not violate international law prohibitions. The chapter discusses the prohibition of certain conventional weapons and then looks at weapons of mass destruction, which are simply defined as nuclear, chemical, and biological weapons. While the production, possession, and use of chemical weapons and biological weapons is prohibited under treaty law, the legal status of nuclear weapons is more complex.

9 Occupation

This chapter addresses the present state of the law of occupation, highlighting also the increasing importance of human rights for the protection of civilians in occupied territories. International law on belligerent occupation determines the rights and obligations of a party to an armed conflict which occupies territory of the adverse party. It also codifies the rights and duties of the residents of such occupied territory. The treatment of the population of an occupied territory is measured against standards set by international humanitarian law and human rights law concurrently. The International Court of Justice (ICJ) left no doubt that as a rule, the specific provisions of GC IV and relevant rules of customary law relating to belligerent occupation take precedence over human rights law, as law specifically drawn up for issues arising out of belligerent occupation (lex specialis). In an exceptional case, it may be determined that a human rights rule offers greater protection to the inhabitants of an occupied territory. When assessing the interplay between international humanitarian law and human rights law, this must be done on a right-by-right or case-by-case basis, respecting the special situation of occupation, rather than in a wholesale manner.

18 The Law of Neutrality

This chapter focuses on rules of the law of neutrality concerning the protection of the victims of armed conflicts, which must be considered as part of international humanitarian law. ‘Neutrality’ describes the particular status, as defined by international law, of a state not party to an armed conflict. This status entails specific rights and duties in the relationship between the neutral and the belligerent states. On one hand, there is the right of the neutral state to remain apart from, and not to be adversely affected by, the conflict. On the other hand, there is the duty of non-participation and impartiality. The right not to be adversely affected means that the relationship between the neutral and belligerent States is governed by the law of peace, which is modified only in certain respects by the law of neutrality. In particular, the neutral State must tolerate certain controls in the area of maritime commerce. The duty of non-participation means, above all, that the state must abstain from supporting a party to the conflict. This duty not to support also means that the neutral state is under a duty not to allow one party to the conflict to use the resources of the neutral state against the will of the opponent.

17 The Law of Armed Conflict at Sea

This chapter evaluates legal developments and practice with respect to armed conflict at sea. The Third United Nations Conference on the Law of the Sea has progressively developed the law and contributed to the emergence of multiple differing regimes, some of which are now customary in character. The San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1995) provides a contemporary restatement of the law of armed conflict at sea, together with some progressive development. The chapter provides an overview of the different acts of naval warfare, comments on special provisions concerning means and methods of naval warfare, and explains the legal status of hospital ships including conditions of their protection.

19 The Law of Non-International Armed Conflict

This chapter provides an overview of the law of non-international armed conflicts and its progressive development. The law of armed conflict, as it has developed in the last part of the nineteenth and the first part of the twentieth century, deals predominantly with wars between states. Its basic principles and rules are, however, likewise relevant for non-international armed conflicts: in all armed conflicts, elementary considerations of humanity must be respected under all circumstances, in order to protect victims, to reduce human sufferings, and to minimize damages to objects vital for survival. Therefore, the parties to the conflict do not have an unlimited choice of the means and methods of conducting hostilities, nor of selecting the targets to be attacked, and they must protect the victims from the effects and consequences of war. This concept is reflected in the principles and rules of international humanitarian law, to be respected by all and, while taking military necessity into account, limiting the use of force for humanitarian reasons. Parties to the conflict respecting these principles and rules are considered as respecting the international order, while those seriously violating them will commit internationally wrongful acts and perpetrators are liable to punishment.

14 Human Rights in Armed Conflict

This chapter explains the application of human rights in armed conflicts. International humanitarian law has much in common with the law of human rights, since both bodies of rules are concerned with the protection of the individual. Nevertheless, there are important differences between them. Human rights law is designed to operate primarily in normal peacetime conditions, and governs the vertical legal relationship between a state and its citizens and other persons subject to its jurisdiction. Human rights law applies primarily within the territory of the state that is subject to the human rights obligation in question. International humanitarian law, by contrast, is specifically designed to regulate situations of armed conflict. These differences between human rights law and international humanitarian law have led some to argue that human rights law is only intended to be applicable in time of peace. However, it is now generally accepted that human rights continue to apply during armed conflict. Hence, international humanitarian law and human rights law can apply simultaneously in situations of armed conflict.

13 Protection of Prisoners in Armed Conflict

This chapter discusses the legal protection of prisoners in any armed conflict and prisoner-of-war status in international armed conflicts. The protection of prisoners in armed conflict is based on ethical, military, and political elements. The humane treatment derives from fundamental legal obligations and the conviction that captured enemies no longer pose any threat to the lives of persons nor to the detaining power. While specific forms and procedures of treatment may be influenced by the former conduct of the prisoner during the combat, for example the use of prohibited weapons, attacks against protected persons, or perfidious acts, standard rules of protection apply. These are deeply rooted in international humanitarian law and human rights. Military considerations also play an important role in the treatment of prisoners in armed conflict. In principle, prisoners are of military value to the adversary. They can be used as sources of information or to influence their comrades who are still fighting. On the other hand, taking and detaining prisoners can impede the detaining power's military operations.

16 Protection of Cultural Property

This chapter provides a commentary on the protection of cultural property in armed conflicts, which covers recent developments in treaty law and international practice. The Second World War spurred the eventual conclusion of the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict and the Regulations for its execution, along with a separate optional Protocol, now known as the First Protocol. The preamble to the former declares that ‘damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world’. While the 1954 Convention applies during international armed conflict (whether or not a legal state of war exists between the belligerents, as well as to all cases of partial or total occupation of the territory of a party), its provisions relating to respect for cultural property also apply to non-international armed conflict occurring within the territory of one of the parties. Meanwhile, the 1977 Additional Protocols to the Geneva Conventions, too, embody brief provisions specifically relating to respect for cultural property. In parallel with these treaty regimes, a body of customary international law has developed over the years to protect cultural property in armed conflict.

2 Historical Development and Legal Basis

This chapter discusses the historical evolution and the existing legal foundations of international humanitarian law in the light of current practice. In this context, the ethical and political prerequisites for legal development are discussed in their global relevance, as the origins of the fundamental principles of humanitarian law are not exclusively based on a single region, culture, or religion. At a time which is characterized by rapid societal changes and diminishing distances, a good understanding of the multicultural basis for humanitarian rules is of the utmost importance. Although the subject of this handbook is the law applicable to the conduct of hostilities that applies once a party has entered into armed conflict (the jus in bello), that law cannot be properly understood without some examination of the separate body of rules which determines when resort to armed force is permissible (the jus ad bellum). The jus ad bellum has ancient origins but current law is founded on Article 2(4) and Chapter VII of the UN Charter. The chapter then considers the Geneva Conventions of 1949, as well as the Hague Conventions.