9 Protection of the Natural Environment

This chapter focuses on international humanitarian law’s (IHL) limitations on warfare to protect the natural environment from extremely serious damage and to prevent unnecessary or wanton harm. IHL protection of the environment developed from the principle of protection of civilians, and it has similar motives and goals. The chapter then describes a legal regime that is undergoing development. The International Law Commission (ILC) termed the overall topic ‘Protection of the Environment in Relation to Armed Conflict’ (PERAC). The central rules of IHL that are well accepted as customary law provide protection to aspects of the environment that can be considered public or private property, or that are essential to human survival. These aspects of PERAC are firmly rooted in the earliest law of war protections for drinking water, crops, and cultural elements, and in modern domestic environmental law and social norms. Yet protection of the environment during armed conflict as a specific legal obligation is a sufficiently recent international norm that its status as binding law has been more contested than early humanitarian commitments like neutrality of medical personnel. This reflects the tension between recognition of the importance of ecological integrity to peace and the interests of states in retaining freedom in their conduct of military operations.

4 Domains of Warfare

This chapter examines ‘domains’ of warfare, which are generally understood as the operational environments in which armed conflict occurs, and to which international humanitarian law (IHL) therefore applies. Until recent decades, domains of armed conflict have been largely predicated on geospatial conceptions, denoting the physical places where armed conflict has customarily occurred: land, sea, and air. General IHL applies across all these areas—including the fundamental principles of humanity, military necessity, and proportionality; restrictions or prohibitions of certain means and methods of warfare; and basic rules requiring humane treatment of persons and respect for civilians and civilian property. Over time, however, the particular exigencies of land, sea, and air warfare have led to the development of some specific IHL rules and principles tailored to each of those environments. Discussing domains of armed conflict therefore offers a window into the historical development of IHL. It shows how the emergence of new operational environments and new means and methods of armed conflict catalyses efforts at legal regulation, which can lead to the development of new domains or sub-sets of IHL. The chapter then considers how the idea of a domain might apply to armed conflict in outer space, and armed conflict involving cyber operations and other emerging capabilities.

1 History and Sources

This introductory chapter provides an overview of international humanitarian law (IHL), which is also known as the international law of armed conflict, or simply law of armed conflict (LOAC) or law of war. The rules and principles of IHL seek to limit the effects of armed conflict and at its core, IHL aims to preserve a sense of humanity in time of war. At the same time, IHL has been developed to regulate the social reality that is armed conflict. As such, in order to provide a realistic, and hence useful, legal framework, IHL must also take into account the military needs of parties to an armed conflict in their pursuit of defeating the adversary. The development of particular treaties and specific rules of IHL over time reflects the exercise of finding the correct balance between these humanitarian and military considerations. As a branch of international law, IHL is subject to the general rules of international law, such as those related to sources, treaty interpretation, and state responsibility. The sources of international law are set out in article 38 of the Statute of the International Court of Justice. This provision lists international conventions, international custom, and general principles of law as the main sources of international law in accordance with which the Court is to decide disputes submitted to it.

8 Specifically Protected Persons and Objects

This chapter addresses the categories of persons and objects which receive specific protection under international humanitarian law (IHL), typically because they are seen as particularly vulnerable. In addition to the legal protection granted to the wounded and sick, contemporary IHL specifically regulates religious personnel; medical units and transports; persons and objects displaying the distinctive emblem; humanitarian relief personnel and objects; personnel and objects involved in peacekeeping missions; journalists; women; children; missing persons; hospital and safety zones; cultural property; and the environment. However, current practice shows that these categories continue to be vulnerable and that respect for the implementation of IHL is often lacking, with the repugnant practices of Islamic State (IS) as the new nadir. Therefore, the enforcement of IHL, through the application of international criminal law, either at the national or international level, is of the utmost importance to show that conduct violating IHL will not be tolerated. An interesting and hopeful sign in that respect is the prosecution of Al Faqi Al Mahdi before the International Criminal Court (ICC).

6 Fundamental Guarantees

This chapter provides a background of the international humanitarian law (IHL) fundamental guarantees. The IHL fundamental guarantees is that body of rules, equally applicable in both forms of armed conflict, that deals with the treatment (and its consequences) of civilians, and of combatants/civilians who are not taking a direct part in hostilities (DPH)/organized armed groups (OAGs) who are hors de combat or otherwise under the control of an adversary belligerent party (and, in some cases, of their own party), when and whilst they remain under that control, and where no other more contextually specific rule of law of armed conflict (LOAC) applies to the treatment or consequence in question. The chapter then assesses a number of specific fundamental guarantees under two broad category headings. The first is humane treatment, which is itself an umbrella fundamental guarantee encompassing: violence to life; through other violent breaches of fundamental guarantees, such as torture and rape; to the proscriptions relating to degrading treatment. The second broad category is restriction of freedoms, focusing upon forced labour and slavery. Whilst this provides but a slim and selective assessment across the broad and still evolving concept of fundamental guarantees, it is hoped that it will nevertheless furnish some indication of the scope and content of this externally referencing, inclusive category of IHL rights and obligations.

15 War Crimes

This chapter focuses on the law of war crimes, which is a criminalized subset of violations of international humanitarian law (IHL). The law of war crimes is a controversial one, not least as states cannot be certain that their nationals will not commit them. Young soldiers in stressful situations, and who are highly armed, may well end up violating IHL (as well as their superiors), and thus be responsible for war crimes. This is not inappropriate, but leads to worry in states about their possible liability, both political and legal. This, in addition to nationalist sentiment that often accompanies armed conflicts, often makes the circumstances surrounding prosecution difficult. Whilst the deterrent effect of prosecutions is not clear, there are important retributive reasons for prosecuting war crimes, and, in addition, criminal law is only one means of enforcing IHL.

14 Humanitarian Relief Operations

This chapter examines humanitarian relief operations in armed conflict. The main tenet of international humanitarian law (IHL) is that human suffering should be limited, even in an environment where causing death and injury is, to a certain extent, legitimate. In amongst the violence and death that characterizes armed conflict in all its forms, humanitarian relief operations seek to assuage the suffering by providing protection and assistance to persons who are affected by the armed conflict. Humanitarian relief actors not only promote IHL to the parties to a conflict, but they also provide protection and assistance to victims of a conflict. States have the primary responsibility to provide humanitarian assistance to their citizens, to provide them with protection, and to respect and ensure respect for IHL. Non-state armed groups engaged in armed conflict also have a responsibility to uphold IHL and provide assistance to people in the territory which they control. However, where the state or armed group is not able to provide such assistance, humanitarian relief actors and organizations can fill the gap. Therefore, like combatants, civilians, and other protected persons, humanitarian relief personnel have specific protections, obligations, and requirements under IHL.

11 Weapons

This chapter focuses on weapons, which are integral to the use of force. However, there is no accepted definition of what constitutes a weapon under international law. It seems clear, though, that the notion is broader than ‘arms’, which are factory-produced weapons, especially when destined for the military market. The notion of a weapon would thus encompass a dual-use item, such as a knife, and adapted devices such as improvised explosive devices (IEDs) or a ‘dirty bomb’, where radioactive material is associated with conventional explosives. The term could also be applied to the use of the internet in a cyber-attack wherein computer code is ‘weaponized’, for instance, in viruses or worms. International humanitarian law (IHL) has traditionally focused on prohibiting or restricting the use of weapons—whether under its Geneva law or Hague law branches—while disarmament law addressed their manufacture and supply. In the future, IHL will need to apply additional restrictions to specific means or methods of warfare. As of now, there are a number of challenging regulatory issues in the area of weapons law, including fully autonomous weapons, cyber weapons, and nuclear weapons, as well as the use of conventional weapons in space.

10 Methods of Warfare

This chapter studies the rules of international humanitarian law (IHL) which regulate methods of warfare. The so-called ‘Hague Law’, which regulates the use of means and methods of warfare so as to mitigate—as much as possible—the ‘calamities of war’, is the oldest branch of IHL. Its basic tenet can be summarized in three fundamental maxims. The first maxim expresses the basic principle of military necessity, which limits the permissibility of means and methods of warfare to what is actually required for the achievement of a legitimate military purpose. The second maxim provides the basis for the prohibition of means and methods of warfare that are of a nature to cause superfluous injury or unnecessary suffering to combatants. The third maxim concerns the principle of distinction, which prohibits not only direct attacks against civilians and the civilian population, but also indiscriminate means and methods of warfare. Both the prohibition of unnecessary suffering and the principle of distinction are regarded as ‘cardinal principles’ of IHL by the International Court of Justice and, in this basic form, are universally accepted as part of customary international law. The chapter then outlines the current state of the law regulating methods of warfare.

18 Terrorism, Counter-Terrorism, and International Humanitarian Law

This concluding chapter addresses the debate about the coverage, adequacy, and effectiveness of international humanitarian law (IHL) in regulating ‘terrorism’. IHL does not recognize any specific legal categories for, or special regime governing, terrorists and terrorist groups. Rather, the general norms of IHL apply to terrorists according to their conduct. IHL was precisely developed as a kind of exceptional or emergency law comprehensively addressing all forms of violence in armed conflict, including that which is labelled ‘terrorist’ in other areas of law. Particularly relevant to terrorism are the general IHL rules on the classification of violence as armed conflict, the categorization of persons during conflict, targeting, detention, criminal liability, and fair trial. Thus, terrorist and counter-terrorist violence may constitute a non-international armed conflict (NIAC) to which IHL applies if the violence is sufficiently intense and organized. The chapter then considers three key legal issues of particular relevance and specificity to terrorism in armed conflict.