Post No.: 0679
Last time on the subject of International Humanitarian Law (IHL), we briefly ran through some of the central provisions stemming from the Geneva Conventions (Post No.: 0660). This time, we’ll start outlining some key provisions that regulate the conduct of hostilities in armed conflicts itself. I know that there are numerous claims of war crimes being committed in the present Russian invasion of Ukraine. So let’s get better clued up about this area of law…
What’s often referred to as ‘Hague Law’ – or the laws of war according to the Hague Conventions – concerns the regulation of the conduct of hostilities, such as rules regarding who or what can be lawfully targeted and which weapons or methods of warfare are permissible. Can a school full of children be legally targeted when the commanders of the enemy armed forces are present there and thus striking the school could significantly bring forward the end of, and thus shorten, the war? Can a farmer be killed during the day when it is established that he/she is fighting as part of an armed group against the government during the night? Can a prohibited weapon be used in tit-for-tat retaliation to a prior attack by such a weapon? ‘Hague Law’ addresses these kinds of tough questions.
Customary law again pretty much closes the gap between the regulation of the conduct of hostilities in international and in non-international armed conflicts; although some differences of detail remain, and what constitutes as war crimes, especially before the International Criminal Court (ICC), may vary. (The International Committee of the Red Cross (ICRC) has attempted to codify the customary laws of IHL, albeit not every State accepts this list as definitive on the matter.)
IHL is implemented during both the planning and execution phases of targeting, and is characterised by the principles of distinction, proportionality and precaution.
The principle of distinction requires belligerents to distinguish between the civilian population and combatants, and between civilian objects and military objectives. Civilians and civilian objects should not be directly targeted. Civilians are defined as anybody who isn’t military personnel (whether of regular or irregular, State or non-state armed forces or groups e.g. State armies, navies and air forces, resistance fighters, members of militia or volunteer corps), whilst civilian objects are defined as anything that doesn’t constitute a military objective. A fuzzy problem is that determining who and what falls into which category isn’t always that straightforward.
An ‘attack’ means any deliberate combat action that has violent consequences, which would therefore also include any violent action taken in defence, as well as acts like cyber attacks that lead to injury, loss of life or harm to infrastructure. Specifically directed attacks on civilians or civilian objects are prohibited. However, indirect civilian casualties and/or damage to civilian objects (collateral damage) are frequently inevitable to achieve military gains (military advantages) that cannot be practically achieved via any other way.
Indiscriminate attacks are also prohibited – these are attacks where the author doesn’t care whether they’ll strike a civilian, combatant, civilian object or military objective, or cannot control the strike to primarily direct it at a specific military objective and limit its effects to that military objective. (The use of thermobaric weapons and cluster munitions by Russia has been one of the key topics in the present war in Ukraine.) Some will argue though that most methods and means of combat are never precise enough to be sufficiently discriminate (e.g. any kind of explosives). Well what’s strongly likely to be indiscriminate includes firing non-guided, high-dispersion ordnance from the limit of its range into a densely populated civilian area, or blind-fire ‘spraying and praying’ a rifle in an urban area.
The principle of proportionality is about whether, in any particular attack, the incidental harm caused to civilians and/or civilian objects is lawfully proportional. IHL does not prohibit (even extensive) collateral damage except when it is expected to be ‘excessive’ relative to the concrete and direct military advantage anticipated. So when the intent of the attacker is to target a military objective, but the attack is expected to cause harm to civilians and/or civilian objects too – this attack will only be deemed unlawful if the collateral damage is predicted to be relatively excessive. A major problem though is that proportionality assessments involve incredibly difficult and controversial calculations.
How do we balance between incommensurable values (e.g. what’s the exchange rate between the lives of schoolchildren and high-ranking military officers)? Even if we can place a crude numerical, perhaps financial, cost to innocent lives or civilian objects, how do we even value ‘military advantage’? Must secondary or long-term effects to civilians or civilian objects be accounted for too? Note also that the proportionality test is not concerned about the actual but the expected collateral damage and anticipated military advantage. This in turn depends on what information is available at the time of the attack and what a ‘reasonably well-informed decision maker’ making use of that information would do.
The principle of precaution requires belligerents to take a series of precautionary measures before attacking. There must be precautionary measures taken when launching attacks (precautions in attack), such as verifying the nature of a target and its surroundings before attacking it, as well as precautionary measures when anticipating attacks by the enemy (precautions against the effects of attacks), such as how an enemy attack could place one’s own civilians at risk.
The verification of a target must be carried out as thoroughly as possible before it is attacked. The means and methods of attack must also be selected to minimise or avoid incidental harm to protected persons and/or protected objects. These obligations aim to ensure respect for both the principle of distinction and proportionality, and are imposed upon those who plan or decide upon an attack – who are normally higher-ranking officers.
These precautions are ‘obligations of means’ and not ‘obligations of result’ – so it’s about doing everything one can feasibly do in light of the prevailing circumstances (e.g. time constraints) to verify a target, rather than whether that target was in fact legitimate or not. This means that any post-event reviewer of an incident must resist the natural temptation to scrutinise the situation with the benefit of hindsight. A violation of this principle will only occur if a belligerent fails to perform a series of precautionary measures – not if those precautionary measures failed to prevent excessively deleterious outcomes.
This implies that it depends on the capabilities of the belligerents (e.g. whether they have clear satellite imagery or UAVs as ‘eyes in the sky’ available to them). This results in normative relativism, where high-tech belligerents are held to higher standards, albeit this is by choice because States are under no legal obligation to keep advancing their military capabilities! If an armed force cannot or decides not to invest in better targeting equipment, it is held to lower standards if it inadvertently misidentifies a few civilians. But on the other paw, if one has high-resolution target-verification technologies along with ‘smart weapons’ at one’s disposal then attacking targets that would otherwise expect to result in disproportionate collateral damage when using any other ordnance or means can suddenly become a lawful option. (It doesn’t mean that ‘smart weapons’ must always be used if ‘dumb weapons’ satisfy the principle of precaution though.)
Planners of strikes should also consider other factors like the effects of the timings (e.g. attacks on industrial targets, if they constitute a military objective, should be carried out outside of peak staff times to minimise civilian casualties), weather conditions, the angle of attacks and any other available strategic choice which could minimise collateral damage (e.g. perhaps resorting to a cyber attack rather than a traditional kinetic attack).
An attack must logically be cancelled or suspended if, at either the planning stage (by higher-ranking officers) or the execution stage (by soldiers on the ground, pilots, etc.), a target is found to not be a lawful military objective or the attack will be expected to cause excessive collateral damage relative to the anticipated military advantage sought. This time this requirement is an obligation of result. Those on the ground or closer to the scene are best placed to cancel or suspend an operation if earlier judgements turn out to be flawed, and they must exercise their own judgements rather than defer it.
As far as the situation permits, another obligation of result is to give advance and effective warning of attacks that may affect the civilian population (e.g. via a clear and timely enough (so not too early or late) radio broadcast or leaflet drop to urge civilians to evacuate from an area where an attack is pending). This requirement can however be suspended if military necessity means that the element of surprise is key. ‘Roof knocking’, where a non-explosive projectile is first fired onto the rooftop of a house as a warning, is controversial though because few civilians will understand that it’s a warning and it might not give enough time for them to leave anyway.
The last obligation of result in this context is to, at any stage, select – amongst different military objectives whose destruction would produce a similar military advantage – the objective that’d bring the least danger to civilian and civilian objects, where possible (e.g. targeting railway lines far away from civilian populations rather than at railway stations, or parts of an industrial plant that’d still neutralise it but not release toxic chemicals into the environment).
Precautions against the effects of attacks are things that the defending side must do to minimise or avoid harm to civilians and civilian objects under their own authority, in case of attacks. Such measures can and should be prudently carried out in times of peace too. Parties to the conflicts should, as best as possible, endeavour to remove the civilian population and civilian objects under their sovereign territory and control away from the vicinity of military objectives, avoid locating military objectives within or near densely-populated areas in the first place, and take other necessary precautions to protect civilians.
It’s about an overall effort to protect civilians and civilian objects from attacks whenever and wherever possible (e.g. building shelters, distributing information, directing traffic, conducting evacuations, dealing with internally displaced persons and refugees, guarding civilian properties, mobilising civil defence organisations). Any displacement of the population must of course comply with IHL provisions regarding the displacement of civilian populations (which includes the law of occupation, which prohibits the transfer or deportation of the civilian population of an occupied territory, or the transfer of parts of the occupying power’s own civilian population into the territory it is occupying). As an obligation of means – this might mean that these precautions aren’t always possible (e.g. trying to relocate immovable objects, or when caught in a siege situation).
An obligation of result is the prohibition of using civilians, persons hors de combat or other protected persons, or movements of such people, to protect military objectives i.e. using them as ‘human shields’. This can result if protected persons are deliberately moved closer to military objectives, or if military objectives are moved to within civilian areas. From the adversary’s perspective, it’s not necessarily unlawful to target military objectives that are shielded by civilians if the principle of proportionality and other precautionary measures are met though.
Woof. Our look at ‘Hague Law’ will continue next time. In the meantime, please share whether you think that this area of international law appears to successfully balance humanitarian goals with the realities of military necessity, by using the Twitter comment button below?