JUS AD BELLUM AND JUS IN BELLO

Under international law, there are two distinct ways of looking at warthe
reasons you fight and how you fight. In theory, it is possible to break all the rules
while fighting a just war or to be engaged in an unjust war while adhering to the
laws of armed conflict. For this reason, the two branches of law are completely
independent of one another.

Jus (or ius) ad bellum is the title given to the branch of law that defines the
legitimate reasons a state may engage in war and focuses on certain criteria that
render a war just. The principal modern legal source of jus ad bellum derives from
the Charter of the United Nations, which declares in Article 2: All members shall
refrain in their international relations from the threat or the use of force against the
territorial integrity or political independence of any state, or in any other manner
inconsistent with the purposes of the United Nations; and in Article 51: Nothing
in the present Charter shall impair the inherent right of individual or collective
self-defense if an armed attack occurs against a Member of the United Nations.

Jus in bello, by contrast, is the set of laws that come into effect once a war has
begun. Its purpose is to regulate how wars are fought, without prejudice to the
reasons of how or why they had begun. So a party engaged in a war that could
easily be defined as unjust (for example, Iraqs aggressive invasion of Kuwait in
1990) would still have to adhere to certain rules during the prosecution of the war,
as would the side committed to righting the initial injustice. This branch of law
relies on customary law, based on recognized practices of war, as well as treaty
laws (such as the Hague Regulations of 1899 and 1907), which set out the rules for
conduct of hostilities. Other principal documents include the four Geneva
Conventions of 1949, which protect war victimsthe sick and wounded (First);
the shipwrecked (Second); prisoners of war (Third); and civilians in the hands of
an adverse party and, to a limited extent, all civilians in the territories of the
countries in conflict (Fourth)and the Additional Protocols of 1977, which define
key terms such as combatants, contain detailed provisions to protect
noncombatants, medical transports, and civil defense, and prohibit practices such
as indiscriminate attack.

There is no agreement on what to call jus in bello in everyday language. The

International Committee of the Red Cross (ICRC) and many scholars, preferring to
stress the positive, call it international humanitarian law (IHL) to emphasize their
goal of mitigating the excesses of war and protecting civilians and other
noncombatants. But military thinkers, backed by other scholars, emphasize that
the laws of war are drawn directly from the customs and practices of war itself,
and are intended to serve State armies. They commonly use the more traditional
rubric, the laws and customs of armed conflict or more simply, the laws of war.
SOURCES OF INTERNATIONAL HUMANITARIAN LAW

Treaties

The first and the main source of international humanitarian law is to be found in
treaties. History tells that rules of International humanitarian Law, particularly
rules on the treatment and exchange of prisoners and wounded, have since long
been laid down in bilateral treaties. The systematic codification and progressive
development of this branch in general multilateral treaty also started in the midst
of the 19th century, which is relatively early as compared with other branches of
international law.

A salient feature of the treaties of international humanitarian law is that most often
a new set of treaties are supplemented or replaced with more details earlier ones
after major wars taking into account new technological or military developments.
Treaties of international humanitarian law have therefore been accused of being
one war behind reality. This is however true for all law and it is only rarely has
it been possible to regulate or even to outlaw a new means or method of warfare
before it has been applied.

Today, international humanitarian law is not only one of the most codified
branches of international law but its relatively few instruments are also rather well
coordinated with each other.

Of all the treaties signed so far, the four Geneva Conventions of 12 August 1949
for the protection of the victims of war are making up the main sources of
international humanitarian law. The first of these conventions is Convention for
the Ameliorations of the Conditions of the Wounded and sick in Armed Forces in
the Field. The second Geneva Convention is Convention for the Amelioration of
the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at
Sea; and the third one is Convention relative to the Treatment of Prisoners of War;
and fourthly there is Convention relative to the Protection of Civilian Person in
Time of War.

These four Geneva Conventions have also been supplemented with the two
Additional Protocols of 8 June 1977. One of which, Protocol I, is Protocol
Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts; and Protocol II is Protocol
Additional to Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of Non-International Armed Conflicts.

ADVANTAGE:
These treaties have the great advantage of putting their rules relatively beyond
doubt and controversy, in black and white, ready to be applied by a soldier
without needing first to make a doctoral research on practice. They, furthermore,
legitimize their rules for the majority of new states which are able to influence
them in the elaboration process and which can more easily agree to be bound by
them in their frequently voluntarist approach.

DISADVANTAGE:
The disadvantages of these treaties, as of all treaty law, are that they are
technically unable to have a general effect-automatically to bind all states.
Fortunately, most of the treaties of international humanitarian law are considered
today among the most universally accepted treaties and only few states are not
bound.

It has also been provided that however important the treaty rules of international
humanitarian law may be even if they constitute obligations erga omnes, belong to
jus cogens and if their respect is not subject to reciprocity- as treaty law they are
only binding on states part to those treaties and, as far as international armed
conflicts are concerned, only in their relation with other states parties to those
treaties. The general law of treaties governs the conclusion, entry into force,
reservations, application, interpretation, amendment, modification of international
humanitarian law treaties and even their denunciation, which however, only takes
effect after the end of an armed conflict in which the denunciating state is involved.
The main exception to the general rules of the law of treaties for international
humanitarian law treaty is provided by that same law of treaties; Once an
international humanitarian law has become binding for a state, even a substantial
breach of its provisions by another state, including by its enemy in an international
armed conflict, does not permit the termination or suspension of the operation of
that treaty as a consequence of that breach.

Customary Law

Although international humanitarian law is a branch widely codified in widely

accepted multilateral conventions, customary rules remain important to protect
victims on issues not covered by treaties, when non-parties to a treaty are involved
in a conflict, where reservations have been made against the treaty rules and also
because of the fact that international criminal tribunals prefer to apply customary
rules, and because in some legal systems only customary rules are directly
applicable in domestic law. Given the time consuming nature and other difficulties
of treaty-making in an international society with more than 190 members and the
rapidly evolving needs of war victims for protection against new technological and
other inhumane phenomena, the importance of custom, redefined or not, may even
increase in this field in the future. This, therefore, indicates the fact that customary
law comes to be another source of international humanitarian law.

Sources of Customary IHL

Customary international humanitarian law consists of rules derived over time from
a general practice accepted as law. Customary IHL complements and fills in the
gaps in treaty law.

1. International Committee of the Red Cross (ICRC)

2. International Law Commission. The International Law Commission (ILC)
was created in 1947 to promote the codification of international law.

This, however, doesnt mean that there arent any difficulties in defining a certain
practice in terms of whether it is a customary rule or not. Those who follow a
traditional theory of customary law and consider it to stem from the actual
behavior of states in conformity with an alleged norm face particular difficulties in
the field of international humanitarian law. First, for most rules this approach
would limit practice to that of belligerents. And this comprises a few subjects
whose practice is difficult to qualify as general and even more as accepted as
law. Second, the actual practice of belligerents is difficult to identify, particularly
as it often consists of omissions. There are also additional difficulties, e.g., war
propaganda manipulates truth and secrecy makes it impossible to know which
objectives were targeted and whether their destruction was deliberate. Finally,
states are responsible for the behavior of individual soldiers even if the latter did
not act in conformity with their instructions, but this does not imply that such
behavior is also state practice constitutive of customary law. It is, therefore,
particularly difficult to determine which acts of soldiers count as state practice.

Other factors must, therefore, also be considered when assessing whether or not a
rule belongs to customary law: whether qualified as practice lato sensu (in its
general sense) or as evidence for opinio iuris (meaning, was it carried out as a
legal obligation?), statements of belligerents, including accusations against the
enemy of violations of international humanitarian law and justifications for their
own behavior.
To identify general practice, statements of third states on the behavior of
belligerents and on a claimed norm in diplomatic fora have to be similarly
considered. Military manuals are even more important, because they contain
instructions by states restraining their soldiers actions, which are somehow
statements against interest. Too few States, generally Western States, have,
however, sophisticated manuals available to the public to consider their contents
as evidence for general practice in the contemporary international community.

RELEVANCE:
Customary IHL continues to be relevant in today's armed conflicts for two main
reasons. The first is that, while some States have not ratified important treaty law,
they remain nonetheless bound by rules of customary law. The second reason is
the relative weakness of treaty law governing non-international armed conflicts
those that involve armed groups and usually take place within the boundaries of
one country. A study published by the ICRC in 2005 showed that the legal
framework governing internal armed conflicts is more detailed under customary
international law than under treaty law. Since most armed conflicts today are
non-international this is of particular importance.

DISADVANTAGE:
Custom, however, has also very serious disadvantages as a source of international
law. It is very difficult to base uniform application of the law, military instruction
and the repression of breaches on custom which by definition is in constant
evolution, is difficult to formulate, and is always subject to controversy. The
codification of international humanitarian law began 150 years ago precisely
because the international community found the actual practice of belligerents
unacceptable, while custom is, despite all modern theories, also based on the
actual practice of belligerents.

Main principles of IHL: military necessity, distinction, proportionality,

precaution, and the dictates of the public conscience

The Martens Clause

The Martens Clause has formed a part of the laws of armed conflict since its first
appearance in the preamble to the 1899 Hague Convention (II) with respect to the
laws and customs of war on land:
 "Until a more complete code of the laws of war is
issued, the High Contracting Parties think it right to
declare that in cases not included in the Regulations
adopted by them, populations and belligerents remain
under the protection and empire of the principles of
international law, as they result from the usages
established between civilized nations, from the laws of
humanity and the requirements of the public
conscience. "

The Clause was based upon and took its name from a declaration read by
Professor von Martens, the Russian delegate at the Hague Peace Conferences 1899
[1 ] . Martens introduced the declaration after delegates at the Peace Conference
failed to agree on the issue of the status of civilians who took up arms against an
occupying force. Large military powers argued that they should be treated as
francs-tireurs and subject to execution, while smaller states contended that they
should be treated as lawful combatants [2 ] . Although the clause was originally
formulated to resolve this particular dispute, it has subsequently reappeared in
various but similar versions in later treaties regulating armed conflicts [3 ] .

The problem faced by humanitarian lawyers is that there is no accepted

interpretation of the Martens Clause. It is therefore subject to a variety of
interpretations, both narrow and expansive. At its most restricted, the Clause
serves as a reminder that customary international law continues to apply after the
adoption of a treaty norm [4 ] . A wider interpretation is that, as few international
treaties relating to the laws of armed conflict are ever complete, the Clause
provides that something which is not explicitly prohibited by a treaty is not ipso
facto permitted [5 ] . The widest interpretation is that conduct in armed conflicts is
not only judged according to treaties and custom but also to the principles of
international law referred to by the Clause.

The Martens Clause is important because, through its reference to customary law,
it stresses the importance of customary norms in the regulation of armed conflicts.
In addition, it refers to " the principles of humanity " and " the dictates of the
public conscience " . It is important to understand the meaning of these terms. The
expression " principles of humanity " is synonymous with " laws of humanity " ;
the earlier version of the Martens Clause (Preamble, 1899 Hague Convention II)
refers to " laws of humanity " ; the later version (Additional Protocol I) refers to "
principles of humanity " . The principles of humanity are interpreted as prohibiting
means and methods of war which are not necessary for the attainment of a definite
military advantage [15 ] . Jean Pictet interpreted humanity to mean that " ...
capture is preferable to wounding an enemy, and wounding him better than killing
him; that non-combatants shall be spared as far as possible; that wounds inflicted
be as light as possible, so that the injured can be treated and cured; that wounds
cause the least possible pain; that captivity be made as endurable as possible. "
[16 ]

This part of the Martens Clause does not add a great deal to the existing laws of
armed conflict as the pr otection extended by the principles of humanity appears to
mirror the protection provided by the doctrine of military necessity. This doctrine
requires that no more force than is strictly necessary be used to attain legitimate
military objectives [17 ] . The doctrine is already well established in treaties such
as the Hague Regulations of 1907

Military Necessity/ Distinction

The parties to a conflict must distinguish between combatants and civilians, and
between military and civilian objects. Belligerents must only direct attacks against
legitimate military objectives. Under the Additional Protocols, attacks mean acts
of violence against the adversary, whether in offense or defense.

There is a two-pronged test for military objectives: (a) does the object, based on its
nature, location, purpose, or use, make an effective contribution to the enemys
military action, and (b) does its neutralization present a definite military advantage
based on the current circumstances?

An objective analysis of the objects nature, location, current use, or future

intended purpose satisfies the first prong. Definite military advantage, on the other
hand, involves the commanders subjective determination. This means that the
commander must evaluate whether neutralizing this object presents a concrete and
direct military benefit to the military interests at stake:

Even if this system is based to some extent on a subjective evaluation, the

interpretation must above all be a question of common sense and good faith for
military commanders. In every attack they must carefully weigh up the
humanitarian and military interests at stake.

For instance, a missile strike on an enemy tank degrades the enemys war-fighting
capability generally, and depending on where the tank is situated on the battlefield,
it might present further concrete and direct tactical advantages were it neutralized.
As an example of a states practice, US policy advances that the military
advantage in the prevailing circumstances may be specific to the military objective
or cumulative:
[W]hile the anticipated military advantage must be concrete and direct, it may
nonetheless include more than immediate tactical gain from the attack looked at in
isolation; it may be calculated in light of other related actions, and it may arise in
the future.

However, this approach is not in conformity with the prevailing norm according to
the Commentary on the Additional Protocols to the Geneva Conventions:

The expression concrete and direct was intended to show that the advantage
concerned should be substantial and relatively close, and that advantages which
are hardly perceptible and those which would only appear in the long term should
be disregarded. Any object that is not a military objective is a civilian object and,
as such, is protected from attack. Civilians, like civilian objects, must receive
protection from direct attack.Under conventional law, when there is doubt as to
whether a person is a civilian, that person shall be considered to be a civilian.
However, as explained below, both combatants and civilians taking a direct part in
the hostilities lose protection from direct attack. For international armed conflicts,
combatants are inter alia (a) members of the armed forces of a party to the conflict
(other than medical personnel and chaplains) or (b) members of militias or other
voluntary corps belonging to a party to the conflict, operating under responsible
command, having distinctive uniforms, signs, or insignia, carrying their arms
openly, and conducting their operations consistently with the laws and custom of
war.

Civilians, as distinct from combatants, are entitled to protection from attack

unless and for such time as they take a direct part in hostilities. Such individuals
remain classified as civilians, but do become legitimate military targets for the
time when they are actively engaged in hostile actions.24 The ICRC has advanced
a three-part test for determining when a civilian takes a direct part in the hostilities,
which has likewise been cited by a US Army law of war manual:

a) a harmful act,
b) a direct causal connection between the act and the likely harm resulting from
the act, and
c) a belligerent nexus between the act and the support of a party to the conflict.

There are status distinctions for actors in international and non-international armed
conflict relative to the protection from direct attack. For international armed
conflicts, combatants are legitimate military objectives, and civilians are
legitimate military objectives only when, and for such time as, they take a direct
part hostilities.

For non-international armed conflict these rules apply, but a brief disparity bears
mentioning as the phrase combatants is not used in APII: While State armed
forces are not considered civilians, practice is not clear as to whether members of
armed opposition groups are civilians. The question arises whether members of
armed opposition groups lose protection from attack based generally on
continuous membership in such a group or whether some direct hostile act is
required:

To the extent that members of armed opposition groups can be considered

civilians ... [a]pplication of this rule would imply that an attack on members of
armed opposition groups is only lawful for such time as they take a direct part in
hostilities while an attack on members of governmental armed forces would be
lawful at any time. Such imbalance would not exist if members of armed
opposition groups were, due to their membership, either considered to be
continuously taking a direct part in hostilities or not considered to be civilians.
There is growing support for the proposition that active, continuous membership
in an armed opposition group that conducts hostilities may render that fighting
civilian a legitimate military objective even when the civilian is not directly
participating in a hostile act.

Distinction

In international armed conflict, combatants are entitled to directly participate in

hostilities. In other words, they are permitted to commit lawful acts of war
intended to achieve a military goal in the most effective way. The principle of
distinction, however, requires that such acts of war be directed only against enemy
combatants and military objectives, while preventing unnecessary and excessive
damage to civilians.

Therefore, implementation of the principle of distinction demands a clear

definition of persons and objects that may be legally targeted. Insofar as persons
are concerned, enemy combatants are members of the armed forces of a Party to a
conflict (except for medical personnel and chaplain). Persons who are not
members of the armed forces are civilians and therefore shall not be the object of
attack. There is one exception, however: civilians directly participating in
hostilities - either individually or as part of a group - become legitimate targets of
attack, though only for the duration of their direct participation in hostilities.
As far as objects are concerned, military objectives are defined through a
two-pronged test: the object to be attacked must by its nature, location, purpose or
use contribute effectively to the military action of the enemy and its partial or total
destruction, capture or neutralization, must offer - in the circumstances ruling at
the time - a definite military advantage. All objects which do not fall under the
definition of a military objective are civilian objects and shall not be attacked.

IHL includes a number of corollaries to the principle of distinction in order to

secure the protection of civilian persons and objects. For example, it stipulates that
combatants in an international armed conflict are required to distinguish
themselves from the civilian population (normally by wearing a uniform) while
they are engaged in an attack or in a military operation preparatory to an attack. In
addition, IHL prohibits indiscriminate attacks and provides for the principle of
proportionality, which dictates that the so called "incidental loss" of civilian life
and/or property should not be excessive in relation to the concrete and direct
military advantage anticipated. In order to implement the restrictions and
prohibitions on targeting, specific precautions must also be observed by all Parties
to an armed conflict.

Finally, the rules on the conduct of hostilities also grant a specific protection to
some objects, including cultural objects and place of worship (such as historic
monuments), objects indispensable for the survival of the civilian population
(including agricultural areas for the production of food-stuffs, crops, or drinking
water installations) and works and installations containing dangerous forces
(namely dams, dykes and nuclear electrical generating stations). Means and
methods of warfare with the potential to cause widespread, long-term and severe
damage to the environment are prohibited as they threaten the health and survival
of the civilian population.

Avoiding indiscriminate attacks. The fundamental principle of distinction also

prohibits indiscriminate attacks, attacks of a nature to strike military objectives
and protected persons and objects
without distinction. API defines indiscriminate attacks as those which:

[a] are not directed at a specific military objective ...;

[b] employ a method or means of combat which cannot be directed at a specific
military objective; or ...
[c] whose effects are of a nature to strike military objectives and civilians
and civilian objections without distinction.
For lethal targeting, belligerents must take reasonable care in executing the attack
to ensure that only the military objective is attacked. The essential elements of this
conventional obligation include positively identifying the military objective,
directing the method of attack to that target, and ensuring that the weapon hits the
target with some degree of likelihood. Examples of indiscriminate attacks
include firing blindly, randomly releasing bombs without positive target
identification, and firing imprecise missiles at military objectives that are
co-located with civilians or civilian objects. For example, consistent with these
obligations, coalition aircrews in the Gulf War were properly directed not to
expend their munitions if they lacked positive identification of their targets. For
APII governing non-international armed conflicts, there is no express treaty
recognition of the obligation to avoid indiscriminate attacks similar to Articles 51
and 57 of API, but Article 13(2)s requirement that the civilian population shall
not be the object of attack embraces the duty to avoid indiscriminate attacks.

Proportionality in attack

Proportionality as a term transcends international law and has a specific meaning

depending on its reference in international law, IHL, or international human rights
law. Proportionality refers generally to four distinct concepts: (a) the requirement
of proportionate force under the jus ad bellum relating to a states resort to the use
of force in self-defence under Article 51 of the UN Charter; (b) the concept of a
proportionate, belligerent response in reprisal against an adversarys violation of
IHL; (c) the jus in bello obligation to ensure that an attack does not cause
disproportionate collateral damage;37 and (d) a states duty under international
human rights law to ensure that the use of lethal force for law enforcement
purposes is restrained and in proportion to the harm presented: [w]henever the
lawful use of force and firearms is unavoidable, law enforcement officials shall ...
[e]xercise restraint in such use and act in proportion to the seriousness of the
offence and the legitimate objective to be achieved.

A discussion of the philosophical origins of this transcendental concept of

proportionality and its intersections between international human rights law and
IHL is beyond the scope of this article. Proportionality in attack within the conduct
of hostilities is discussed in greater detail below.

Precautions in attack

Conventional and customary IHL obligates the attacking party to take sufficient
precautions prior to an attack.40 API codifies the current conventional and
customary international law provisions relating to the necessary precautions in an
attack. It specifies that constant care shall be taken to spare the civilian population,
civilians and civilian objects.

Pursuant to this affirmative duty, those who plan and approve attacks must:

a) verify military objectives. Do everything feasible to verify that the target is a

military objective, and not civilians, civilian objects, or other protected persons or
places;

b) avoid or minimize collateral damage. Take all feasible precautions in

choosing both the means and methods of attack with a view to avoiding, and in
any event minimizing, incidental loss or civilian life, injury to civilians and
damage to civilian objects; and

c) refrain from excessive collateral damage. Refrain from deciding to launch an

attack which may be expected to cause collateral damage which would be
excessive relative to the concrete and direct military advantage anticipated.

Although current US Army legal doctrine fails to direct critical attention to such
precautions, the Armys 1956 Law of Land Warfare guide obligates the planners
of an attack to verify the military objective reasonably prior to an attack, to avoid
attacks creating probable losses in lives and damage to property disproportionate
to the military advantage anticipated, and to provide warnings prior to a
bombardment to facilitate the evacuation of civilians from the impact area.
Generally, feasibility determinations depend on multiple factors, such as the
availability of intelligence concerning the target and target area, availability of
weapons, assets, and different means of attack, level of control over the territory to
be attacked, urgency of attack, and additional security risks which precautionary
measures may entail for the attacking forces or the civilian population.

This obligation to minimize collateral damage in planning the attack precedes the
subsequent obligation to refrain from disproportionate attacks: In other words,
there is a requirement to minimize collateral damage and not merely to cause no
more than proportional collateral damage. For instance, even when choosing a
plan of attack that minimizes collateral damage, planners must still refrain from
the attack if the expected collateral damage would be excessive to the military
advantage anticipated.

Planners, commanders, operators who execute an attack, and anyone who

exercises effective control over the attack must cancel or suspend it if it becomes
apparent that: (a) the object is no longer a military objective, (b) the object is
subject to special protection, or (c) the expected collateral damage would be
excessive relative to the anticipated military advantage. For attacks affecting the
civilian population, planners and operators must give effective advance warning
unless the circumstances do not permit, such as assaults necessitating surprise.
Planners have a duty to consider and comply with the notice requirement where
some harm to civilians or civilian objects is anticipated.

There can be no general policy of not giving advance warning of attacks because
the circumstances of each attack must be considered. Where the circumstances do
not permit effective advance warning, such as those that do require surprise in the
attack, a commander should take other measures to ensure that civilians have a
chance to protect themselves. On this point, the ICRC Commentary to API
illustrates that providing a warning of a missile strike may be inconvenient when
the element of surprise in the attack is a condition of success; however, civilians
must still be on notice as to the types of facilities, objects, or objectives that are
likely to be subject to attack. Finally, there is a lesser of two evils rule. Where
there is a choice among different military objectives for obtaining a similar
military advantage, ommanders must attack that objective which may be
expected to cause the least danger to civilian lives and civilian objects.
To establish a baseline of understanding, the foregoing has provided a brief
restatement of the IHL principles that govern targeting and the protection of the
civilian population. A critical examination of US doctrine and policy on targeting
follows to evidence just one states practice for the purposes of exposing the
difficulties of determining what constitutes excessive collateral damage.

METHODS AND MEANS OF WARFARE

International law limits the methods and means used to wage war. These
restrictions apply to the type of weapons used, the way they are used and the
general conduct of all those engaged in the armed conflict. The principle of
distinction requires that Parties to an armed conflict distinguish at all times
between combatants and military objectives on the one hand, and civilian persons
and objects on the other, and accordingly attack only legitimate targets.

The main treaties placing limits on methods and means of waging war are the
Hague Convention of 1907, the 1977 Additional Protocols to the Geneva
Conventions and a series of agreements on specific weapons. The ICRC has been
involved in the process of developing the law in this field.

In general terms, international humanitarian law prohibits means and methods that
cause superfluous injury or unnecessary suffering. As a result certain types of
weapons are not allowed and the way other weapons are used is restricted.
Specific measures to limit the use of certain types of weapons include the 1997
Ottawa Convention on the prohibition of anti-personnel mines, the 2003 Protocol
on explosive remnants of war (an addition to the 1980 UN Convention on Certain
Conventional Weapons) and the 2008 Dublin Treaty banning cluster bombs.

Progress is also being made on controlling the proliferation of small arms that are
so lethal in many poorer countries. Parallel to bans and restrictions on
unacceptable weapons, IHL also limits the use of acceptable conventional
weapons.

The law also regulates many other methods and means of conducting armed
conflicts. There are rules on the misuse of flags of identification and the treatment
of mercenaries; it is forbidden to order that there be no survivors in battle. Specific
rules apply to demilitarized zones and non-defended areas.

Prisoners of War (POWs)

The third Geneva Convention provides a wide range of protection for prisoners of
war. It defines their rights and sets down detailed rules for their treatment and
eventual release. International humanitarian law (IHL) also protects other persons
deprived of liberty as a result of armed conflict.

The rules protecting prisoners of war (POWs) are specific and were first detailed
in the 1929 Geneva Convention. They were refined in the third 1949 Geneva
Convention, following the lessons of World War II, as well as in Additional
Protocol I of 1977.

The status of POW only applies in international armed conflict. POWs are usually
members of the armed forces of one of the parties to a conflict who fall into the
hands of the adverse party. The third 1949 Geneva Convention also classifies
other categories of persons who have the right to POW status or may be treated as
POWs.

POWs cannot be prosecuted for taking a direct part in hostilities. Their detention
is not a form of punishment, but only aims to prevent further participation in the
conflict. They must be released and repatriated without delay after the end of
hostilities. The detaining power may prosecute them for possible war crimes, but
not for acts of violence that are lawful under IHL.
POWs must be treated humanely in all circumstances. They are protected against
any act of violence, as well as against intimidation, insults, and public curiosity.
IHL also defines minimum conditions of detention covering such issues as
accommodation, food, clothing, hygiene and medical care.

The fourth 1949 Geneva Convention and Additional Protocol I also provide
extensive protection for civilian internees during international armed conflicts. If
justified by imperative reasons of security, a party to the conflict may subject
civilians to assigned residence or to internment. Therefore, internment is a security
measure, and cannot be used as a form of punishment. This means that each
interned person must be released as soon as the reasons which necessitated his/her
internment no longer exist.

Rules governing the treatment and conditions of detention of civilian internees

under IHL are very similar to those applicable to prisoners of war.

In non-international armed conflicts, Article 3 common to the 1949 Geneva

Conventions and Additional Protocol II provide that persons deprived of liberty
for reasons related to the conflict must also be treated humanely in all
circumstances. In particular, they are protected against murder, torture, as well as
cruel, humiliating or degrading treatment. Those detained for participation in
hostilities are not immune from criminal prosecution under the applicable
domestic law for having done so.

GRAVE BREACHES: Individual criminal responsibility for violations of

international humanitarian law committed in non-international armed
conflicts

Two prominent events that occurred midway through this century had a great
impact on international criminal law. The first milestone in this area was the trials
of the major war criminals held in Nuremberg and Tokyo in the wake of the
Second World War. They highlighted the principle of individual criminal
responsibility for certain serious violations of the rules of international law
applicable in armed conflict; the terms crimes against the peace, war crimes,
and crimes against humanity found formal recognition. The second event,
following closely on the first, was the adoption of the four Geneva Conventions of
12 August 1949 for the protection of war victims. These instruments established a
specific framework for the prevention and punishment of the most serious
violations of the provisions they contain; the technical term grave breach was
coined.
However, these well-known developments concerned only international armed
conflicts [1 ] . In 1949 it was generally considered that an extension of the system
of grave breaches to cover internal conflicts would be viewed as an unacceptable
encroachment on State sovereignty. When the Protocols additional to the Geneva
Conventions were adopted, on 8 June 1977, States had not changed their stance in
this respect. Furthermore, newly independent countries feared that their new
partners would take advantage of any potential opening provided by the adoption
of Protocol II (relating to non-international armed conflicts) to justify excessive
interest in their internal affairs.

Today, however, the majority of armed conflicts are non-international, and there is
nothing to suggest that the classification of a conflict as international or
non-international under international law has any effect on the conduct of the
parties involved. Alas, history offers all too many examples of wantonly
destructive behaviour in civil wars, with Cambodia, Somalia, and Rwanda
springing to mind. Faced with such events, the international community can no
longer turn a blind eye. There is a growing determination to see all perpetrators of
atrocities committed in the course of armed conflict held responsible for their acts;
and developments in human rights law have already made inroads into the
argument of sovereignty which has blocked such aspirations in the past.

The confluence of these trends highlights the pressing need for formal recognition
of universal jurisdiction for the repression of serious violations of international
humanitarian law applicable in non-international conflicts. But what is the current
situation? Does international law as it stands today give States jurisdiction to
prosecute and try the perpetrators of such violations? If so, what form does this
jurisdiction take and how is it framed?

Among the traditional range of offences incurring individual criminal

responsibility in the context of international armed conflict are two that do not
require lengthy consideration here, since it is now generally acknowledged that
universal jurisdiction does exist for prosecution of the perpetrators. These are
genocide and crimes against humanity.

With regard to genocide , it will suffice to recall briefly that the customary nature
of the principles forming the basis of the Convention on the Prevention and
Punishment of the Crime of Genocide of 9 December 1948 has been recognized
since the 1950s; [2 ] that Article 1 of this instrument states that genocide is a crime
under international law whether committed in time of peace or in time of war;
and moreover that the International Court of Justice recently confirmed that the
duty incumbent on States in terms of prevention and repression pursuant to the
Convention is no different whether the conflict is international or internal. [3 ]
As for crimes against humanity, it is noteworthy that the report by the United
Nations Secretary-General on the draft statute of the International Criminal
Tribunal for the former Yugoslavia (ICTY) indicates that they can occur in the
course of an internal conflict or an international conflict [4 ] . This assertion was
reinforced by the adoption of the statutes of the International Criminal Tribunals
for the former Yugoslavia and Rwanda (the first expressly stipulates, in Article 3,
that both categories of conflict are covered by this provision, and the second
mentions crimes against humanity in Article 3), and received formal recognition
from the Appeals Chamber in the Tadic case, which stated: It is by now a settled
rule of customary international law that crimes against humanity do not require a
connection to international armed conflict. [5 ]

Since crimes against peace (today crimes of aggression) are a matter involving a
different set of issues, we shall now turn to all the other violations of international
humanitarian law applicable in non-international armed conflict and consider
whether some of them have, on account of the importance attached to them by the
Community of States, been established as crimes whose perpetrators incur
international criminal responsibility. Can offences committed d uring internal
conflicts be classed as war crimes? Does the term grave breach have any
meaning within the context of non-international armed conflict?

Application of international obligations to individuals

Today there is no longer any doubt as to the existence of treaty-based and

customary rules applicable in internal conflicts. Moreover, with regard to the
question of whether the rules of humanitarian law are binding only on States
which would thus be held solely responsible in the event of non-observance or
whether they also apply to individuals, who could violate them directly by their
conduct, it would seem that the second option clearly outweighs the first,
regardless of whether the conflict is internal or international in nature.

It is worth briefly noting here that the substance of the rules contained in Article 3
common to the four Geneva Conventions of 1949 and in Protocol II additional to
the Conventions (for example, Article 4 relating to fundamental guarantees) makes
frequent reference to the acts of individuals [6 ] ; that there is an obligation to
disseminate the rules (Protocol II, Article 19); and that the obligation to ensure
respect for the provisions of humanitarian law (in this regard the State is required
not only to ensure that its own agents respect these provisions, but also to ensure
that all the people under its jurisdiction do so) is also applicable in internal
conflicts [7 ] . All these observations point to the fact that the law applicable in
such conflicts also governs the conduct of individuals.
end