The substantive rules of the law of armed conflict
|Cours||International humanitarian law|
- 1 The two cardinal principles of the law of armed conflict
- 2 The "Hague Law": the rules on the conduct of hostilities
- 2.1 The principle of distinction
- 2.2 Places and objectives immune to attack
- 2.3 Prohibited weapons
- 2.4 Principles applicable under customary law
- 2.5 Other prohibited means and methods of warfare (examples)
- 3 The "Law of Geneva": the treatment of protected persons
- 3.1 The general principle of human treatment
- 3.2 Geneva Conventions I and II: the care of the wounded and sicks
- 3.2.1 Convention I
- 3.2.2 Convention II
- 3.3 The Geneva Convention III: the protection of prisoners of war
- 3.3.1 Applicability ratione personae: definition of the combatant
- 3.3.2 Rules of protection
- 220.127.116.11 The representation of prisoners of war
- 18.104.22.168 The ICRC visits
- 22.214.171.124 The death of prisoners of war
- 126.96.36.199 The trial of prisoners of war
- 188.8.131.52 Repatriation or release
- 184.108.40.206 The voluntary transfer
- 220.127.116.11 The obligation to transfer prisoners of war: cases of repatriation
- 3.4 The Geneva Convention IV: the protection of enemy civilians
- 3.4.1 Opening remarks
- 3.4.2 Applicability ratione personae: definition of protected civil
- 3.4.3 Clauses of inviolability of rights
- 3.4.4 The general rules
- 3.4.5 The war occupation
- 4 Annexes
- 5 References
The two cardinal principles of the law of armed conflict[edit | edit source]
What about the substantive rules of the law of armed conflict? There are two sets of rules: the Hague rules relating to the conduct of hostilities, and the Geneva rules relating to the protection of persons hors de combat.
The fundamental principle of the former is that the "freedom" or "choice of means" as it is sometimes called, to harm the enemy is not unlimited. It is therefore the limitation of means that constitutes the core of Hague law. Just look, for example, at Article 22 of the 1907 Hague Regulations. The same rule is found in Article 35 of Additional Protocol I.
The observation may also seem banal to say "limitation of means". But, on reflection, it may not even be as banal as that because it shows a whole structure of Hague law that is based on prohibition rather than authorization. The state is supposed to be able to do whatever it takes to defeat the enemy, so we don't need to tell it what it has the right to do, because that is covered by its sovereignty. Some means and methods are simply considered excessively destructive or otherwise unwelcome by excessive effects and therefore these methods are prohibited. In short, Hague law is based on the idea of a freedom to act with precise prohibitions. However, the Martens clause brings a certain temperament to the sphere of freedom of action. Of course, the Martens clause can also be seen as a fairly important and general limitation.
The Geneva law is based in particular on the principle of the humane treatment of protected persons as found, humane treatment, in all these fundamental provisions of the Geneva Conventions. For non-international armed conflict, in common Article 3, in Article 4 of Additional Protocol II too, but on this point he does not add much to it, or in Articles 12, 12, 13, 27, of the Geneva Conventions, which are the provisions opening up the material part of each of the conventions, also in Article 11 of Additional Protocol I.
Hague law and Geneva law, therefore with two logics, not contrasting, but still sufficiently different for them to be separated from each other from a didactic point of view and for the former to be attacked first before the luxury of the latter.
The "Hague Law": the rules on the conduct of hostilities[edit | edit source]
We will first discuss Hague law, i.e. the rules on the conduct of hostilities, the means and methods of warfare addressing the most important of the prohibitions. There is not an exhaustive list, however, but it is nevertheless quite extensive in Article 8 of the Statute of the International Criminal Court. It is a very long provision. It has some shortcomings, but all the rules have a certain importance for IHL, including prohibited means and methods, which are mentioned from the point of view of criminal law, i.e. the individual criminal sanction in the event of transgression. The most important from a systemic point of view of these prohibited means and methods is the principle of distinction.
The principle of distinction[edit | edit source]
What does "distinction" mean? The point is as follows: each belligerent is asked to distinguish at all times between civilian objects and civilians on one side. Professor Kolb recalls from his experience that a few old officers in the Swiss army always have the impression that people must be protected, but with objects there is no problem, so artillery fire is fired and Geneva is bombed without any problem, buildings and all this can fall, the population must be evacuated and then fired upon. That's not quite true. That is why Professor Kolb put objects first, not to be humanist, actually.
So, on the one hand, we must have civilians and civilian objects and, on the other, we must distinguish between military objectives. Military objectives are objects or persons that can be attacked during armed conflict. The rule of distinction provides that the belligerents therefore distinguish between these two spheres, the civilian on the one hand and the military on the other, and that it only attacks the military to the exclusion of the civilian. It is therefore prohibited to attack objects or civilians directly while it is permitted to attack military objectives directly or indirectly.
The underlying reason for this rule is that war is not there to destroy as much as possible, but to impose itself on the enemy. Which means in military terms, to target its resistance. Since civilians do not resist, because as such they do not participate in armed conflicts - if they do, they can be attacked. Suppose now that they do not participate because that is the traditional notion of civilians; therefore, attacking civilians would not advance towards the desired objective, i.e. imposing themselves on the enemy. Nothing would be gained by doing so, since it would not break any resistance, it is an unnecessary destruction from the point of view of the law of armed conflict as it is traditionally perceived.
It should also be noted that this rule from this angle is also realistic, not for a few armed groups in Africa that kidnap, loot and kill people, which is more criminal than armed conflict, but we are here in non-international armed conflicts because these rules apply first and foremost in international armed conflicts, so taking armed forces as a reference unit. It is quite clear that from the army's point of view, we do not want to disperse our forces by attacking objectives that would not bring anything from the military point of view. Worse still, if we attack civilians directly, then we will be attacked by the press and by all the institutions in the world that can and can be imagined as committing horrible war crimes. That is what we want to avoid at all costs. So it's a rule that's also very realistic. It is provided for in Article 48 of Additional Protocol I with the title "Basic Rule".
We note that the term "military objectives" changes slightly in this sentence. The first time it is opposed to property, the second time, at the very end of the sentence, it includes combatants. It is therefore possible to attack combatants and objects used for military purposes in a way that will still have to be specified.
This is what "principle" or "rule of distinction" means. It is obviously cardinal, because without this rule, a belligerent could attack everything, literally, and military and civilian objects and that would simply mean total war. With such a conception, we cannot of course have a law of war, there would simply be a war of unlimited destruction.
The principle of distinction has three components in modern humanitarian law. First of all, and this is quite obvious, the prohibition on attacking civilians, then the prohibition on attacking civilian property, and finally, the prohibition on indiscriminate attacks, attacks that do not therefore distinguish between what is civilian and what is military, these are attacks that basically deny the principle of distinction and the way in which an attack can be indiscriminate must still be discussed.
The prohibition of attacks on civilians[edit | edit source]
This is a very fundamental rule. In military service, many things revolve around this rule, that is, it is the rule we always come back to.
It is perhaps surprising to learn that this rule, which seems rightly fundamental, is only codified in very clear terms in Additional Protocol I, i. e. a 1977 text that is ten years younger than Professor Kolb. It is found in all the provisions around 48, 50, 51, and finally in the entire section as in article 4 "the entire civilian population.
In the past, the principle was not codified. In the 19th century, it was considered so obvious that civilians were not attacked that it went without saying. It would have been considered a very strange task to have to remind the belligerents that they are not attacking civilians when this made the strictest military code in Europe in the 19th century. Obviously, in the 20th not at all, it must and how, be recalled in a convention. What can be done before 1977 is to go back to the rule through the provisions that allow it to be done through, and in particular Article 25 of the Hague Regulation, which prohibits the bombing of open cities. The reason for this is that, if not, civilians are attacked in open cities and it is therefore possible to arrive at the rule by interpretation, but this is not clearly stated. This must be done indirectly, whereas the protocol really offers this rule in all its splendour in the provisions mentioned in particular in Articles 50 and 51.
What is the extension of the rule? The very first thing to note, and it is really important, is that the rule only applies to direct attacks, that is, if you aim to bomb a certain site, and you bomb the University of Geneva, which is composed of civilians, it is an attack against prohibited civilians. On the other hand, this provision prohibiting attacks on civilians does not concern so-called collateral damage. When attacking a military objective, there may be a number of civilians or even civilian objects struck at the same time as the attack. There is not an attack on civilians here, there is an attack on a military objective that at the same time has some impact on civilians around the impact area. Knowing how much of this collateral damage is acceptable in IHL is a matter of indiscriminate attack, which is the third principle.
The second point concerns the question of who is a civilian. The issue is important, because if attacks against civilians are prohibited, it is important to know who the protected persons are in this regard. IHL in Article 50§1 of Protocol I is clear in this respect and defines civil in a negative way. In other words, the protocol does not say who is a civilian. He teaches us, but then very clearly, who is a civilian, anyone who is not a fighter.
There are therefore two categories of persons in the law of armed conflict, two fundamental categories: civilians on the one hand and combatants on the other. The protocol simply says that everyone who is not a combatant is a civilian. It goes without saying that IHL does not say at the same time that any person who is not a civilian is a combatant, otherwise it would not work. There is indeed a very articulated definition of the combatant that we will see later, because it is useful in the context of Geneva law with Article 4 of the Geneva Convention III. So we have a definition of the fighter.
Any person who does not meet the criteria for combatant under Article IV of the Geneva Convention III, or even under the reform in Additional Protocol I to Article 44, any person who is therefore not a combatant under these criteria is automatically a civilian. The advantage of this is that we have no residual category, i.e. we do not have a legal black hole in the Geneva Convention system. For, if civilians had been defined positively on the one hand, and combatants on the other, there might have been cases where the lawyer would have been confronted with persons who clearly or perhaps do not meet the criteria of either and who could therefore not fall within the protection of the different categories provided for by IHL. The negative definition avoids this rut since it ensures that anyone who is not a combatant automatically falls into the trap of a civilian. We can notice that this way of proceeding makes it possible to sharpen protection, because civilians are in principle protected; the status of combatant is exceptional here, it must be proven. At that point, if it is a fighter, which is what we have to determine, then we can attack it, but if it is not a fighter, we cannot attack the person, which provides broader protection.
This rule is an important complement to the presumption of a person's civil status. This is still the first paragraph of Article 50, but the second sentence "in case of doubt, such person shall be considered as a civilian". This is also what ensures and underpins protection, because, in case of doubt, the rule of shooting first and asking questions then does not apply, but the opposite rule applies, check first and shoot only if it is a fighter otherwise there would be the risk that too many ultimately protected people would be attacked. Even Americans are taking this rule more and more seriously, they do not want to be attacked, not only internationally, but also inside to commit any kind of blunder. It has become unfashionable, to kill civilians, it makes a horrible bad press. We become very attentive and there is some very nice vocabulary where they want to win the hearts.
In Article 50, this is the third remark, there is also a third paragraph. It states that if within a civilian population, and therefore a gathering of several civilians, there are some isolated combatants, the civilian population does not lose its civilian character. In other words, it is not contaminated by its status by the presence of the combatants. If we were in an international armed conflict, in the classroom, and there were two or three combatants sitting among the students, the opposing belligerent could not bombard the student crowd by arguing that there were combatants because, as a non-combatant, the non-combatant students would not have lost their status. Such an argument would therefore not simply be a violation of the principle of indiscriminate attack, but a direct attack against civilians, and this is therefore the category not of indiscriminate attacks, but of attacks against civilians. A few isolated female combatants cannot be used as a pretext to change the nature of the civilians in which these isolated combatants find themselves. Obviously, if the number of combatants increases considerably, then at that time, it will be a question of excessive collateral damage, therefore 51§ 5.b.
The fighters must therefore be isolated. You have to look at the commentary on the protocol if you want more discussion on this subject.
The rule prohibiting attacks on civilians is not without exception. He knows one of great size, of the utmost importance and on which we must focus. This exception concerns civilians who take a direct part in hostilities. When a civilian takes a direct part in hostilities, he or she is not automatically a combatant. To be a combatant, you must meet certain legal requirements. If a person does not fulfil them, he cannot be a fighter, but that does not mean that he cannot, in fact, perform hostile acts or even fight. As a civilian, it is perfectly possible to open a window, take a gun and activate as a sniper, and thus, a civilian participates directly in hostilities for the cause of a belligerent.
There is an exception to immunity from attack in this regard. A civilian who participates directly in hostilities remains a civilian, but can be attacked during the phase of his engagement, as he fights, he can be fought, as he kills, he can be killed. It is Article 51§3 which provides that civilians enjoy the protection granted by this section, unless they participate directly in hostilities and for the duration of such participation. There is an equivalent provision in Additional Protocol II to Article 13.
The problem is that the protocol does not define more precisely what it means by the term "direct participation in hostilities", i.e. direct participation in hostilities. This is why, and in particular because this issue is becoming increasingly important in a world where the military is no longer so clearly separated from civilians and where civilians are increasingly involved in hostile activities, and it is for this reason that the ICRC has examined the issue and written under the leadership of Nils Melzer, who, according to Professor Kolb, is very sympathetic, with whom he has regularly had "small discussions on IHL" and not controversial, but friendly on the train. Mr. Kolb then thinks that others listening to them on the train must think they are "totally crazy". This document is entitled Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law and was published on 26 April 2009. Let us keep in mind that publications in journals are published late and that a 2009 publication is naturally in the 2008 series.
This report is relatively rich and complex. We will see the most important aspects for the purposes of the course. There are two fundamental aspects to this document.
First, the distinction between two categories of direct participation in hostilities, which are sporadic participation on the one hand and the continuous combat function on the other. The ICRC study distinguishes between a person who joins an armed group and carries out regular hostile operations. This person, in a non-international armed conflict, will not be a combatant anyway because there is no combatant in a non-international armed conflict, there are no combatants in the legal sense of the term. But even in an international armed conflict, it may well happen that someone who joins an armed group is not a combatant because he or she does not meet the conditions to be a combatant. He may not wear a fixed, distinctive sign visible at a distance as long as this criterion applies, and at that time, if he does not have a uniform or something equivalent, he cannot be a combatant, but he still fights, he does hostile actions. It falls exactly within the scope of the rule provided for here. So it's a question of affiliation. If I go into an armed group, and I am in a continuous combat function, I am affiliated with that armed group and perform regular hostile actions for that armed group.
On the other hand, there is the civilian participating sporadically in hostilities, which is what was formerly called "farmer by day fighter by night". An individual goes about his activities and sporadically participates in hostilities such as sabotage at night or joining the maquis at certain times and then they still return to his civilian life.
The ICRC distinguished the two situations because the loss of immunity from attack is not identical; in its view, at least in both situations. It does not emerge from the supplementary protocol, but it is a proposal for interpretation by the ICRC and the group of experts that worked with Nils Meltzer.
In the case of the continuous combat function, civilians participate in hostilities in a precisely continuous manner, as does a soldier in the regular army, and therefore, the ICRC considered that equality between the parties required that this civilian be able to be attacked at any time as long as he remains in the armed group and does not dissociate himself from it, as is true for a regular army fighter. It was therefore felt that the same should be done for civilians who had such an intense degree of involvement in an armed group that it would be unrealistic to ask the opposing belligerent to attack them only at certain times and to the exclusion of other members.
On the other hand, the same rule does not apply to people who participate only sporadically. The latter can only be attacked during the phase of their hostile engagement, i.e. while they are conducting hostile operations. With the example of the sniper, it is during the moment when, with the gun in his hand, he is yoking people and even shooting. When he puts his rifle in the cellar or if it is buried somewhere to hide it, and the civilian returns to the restaurant where he works, during that phase, he cannot be attacked, but he can be arrested to be tried. The reason for the rule is that otherwise there would be both too much collateral damage, and more importantly, there is a risk of burr. There must be an objective element.
It should be noted that, therefore, in IHL, it is not impossible to attack someone when they are driving a car. In the middle of the desert, two or three members of an armed group drive a car to negotiate somewhere; it is possible to drop a bomb on this car when it comes to people, civilians, who are affiliated with an armed group and who perform continuous combat functions. That is why some experts were also against it because he also felt that it could lead too easily to abuse. Finally, it is the ICRC's interpretation that has been proposed.
There is a second aspect in this ICRC report that deserves attention, namely, what is a direct participation in hostilities, and therefore what acts can be considered as direct participation. Because, it is understood, indirect participation would be insufficient, by exclusion and conversely. Participation must be direct according to the protocol vocabulary. But what is direct participation, and what is participation in hostilities.
There are cases that can be complicated in causal chains. Some of them have been discussed at the ICRC for a long time. For example, what about a civilian who in his tractor transports certain goods necessary for combat to the front line; is it a direct participation or is it an indirect participation. He himself did not fire, but he was carrying weapons to the front. These are very complex issues, and discussions sometimes lasted for hours on a point with quite divergent opinions. However, it should be noted that the report attempts to answer most of these questions and that the criteria were set out in the ICRC's recommendations in paragraph 5, on page 995-995, "constitutive elements or direct participation in hostilities". There is then a fairly detailed commentary on these criteria.
There are three criteria, which are cumulative criteria that an act must meet in order for it to be an indirect participation in hostilities and therefore for the person who commits the act to be attacked, loss of immunity from attack.
First of all, there is what the ICRC calls the threshold of arms. So there is a certain threshold of damage. According to the ICRC, the act must be likely to adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, to inflict death, injury, or destruction on persons or objects protected against direct attack (threshold of harm). We can therefore see that the definition of the threshold is quite strict, even high. If we look at the specific acts mentioned, there is only the destruction of people and objects, i.e. the very last moment when "someone shoots" is detained. The ICRC considered that if we went further, we would also be punishing indirect participations in hostilities and what is not covered by the text of the protocol and, in addition, we would put at risk a whole series of civilians who participate only very indirectly in military operations. Because, after all, in times of war, almost all civilians contribute. Indirectly, we all contribute. If we pay taxes during an armed conflict, we participate in the war action, because with our money, the State will buy weapons.
Secondly, there must be a direct causal link between the act and the harm likely to result either from that act, or from a coordinated military operation of which act constitutes an integral part (direct causation). Again, this is a direct question, not a direct one. The causality must be direct between the act and the damage as we have prospected it earlier. There was an objection simply that sometimes the acts are part of a single military operation and that, therefore, at that time, the whole military operation must be seen.
Thirdly, it is necessary to a belligerant nexus: the act must be specifically designed to directly cause the required threshold of harm in support of a party to the conflict and to the detriment of another (belligerent nexus). The purpose of this rule may not be apparent when you link it like that. It is a question of ensuring that the civilians who act here, and who can therefore be attacked, are civilians who are participating in the armed conflict, that is, who are trying to promote the cause of one of the belligerents. On the other hand, we do not wish to include in the field of IHL persons who engage in criminal activities in the territory, i. e. who commit acts of depredation or other acts, but who do not have in the context of the cause of a party to the conflict, but simply in the field of crime.
This is a bit generic, but more specific comments would take more time.
The principle that civilians should not be directly attacked as an extension of corollary obligations on the attacking belligerent, but sometimes also on any party to conventions, or even on any belligerent, also the attacked.
First of all, there is Article 51 § 7 of Additional Protocol I. It concerns the obligation not to use non-combatants to protect military objectives or to promote military operations. In other words, in the slightly day-to-day vocabulary, they are called "human shields". Why are they banned? Because they put the opposing belligerent in the very difficult situation of, if he chooses to attack the military objective, having to strike civilians as well, knowing that he will strike them. It is therefore a situation on the sidelines between direct attack on civilians and excessive collateral damage.
Secondly, we must consider Article 58 of Additional Protocol I. This provision provides that belligerents, but also Contracting States in general, should endeavour, as far as possible, which varies greatly according to the geographical and political configurations of each State, should endeavour, as far as is feasible, to separate military objectives geographically, physically and as far as possible, from areas of concentration of civilians. This provision refers to "parties to conflicts" and not to "belligerents who attack". The aim is once again to ensure that civilians will not be attacked, either by collateral damage or directly also by their proximity to military objectives.
Sixthly and finally, the principle that civilians should not be attacked directly is analogously applied to certain categories of combatants or military personnel, but only in special situations. The rule remains that a fighter can be attacked at any time, even while sleeping. But there are a few exceptions, and to these exceptions, the rule of immunity from attack as it exists for civilians is applied by analogy.
What are these situations? First of all, it is about the combatants when they are out of combat. This can occur in a variety of ways. A fighter may be out of action by surrender. Once a fighter has surrendered, he can no longer be attacked. But this can also be the case due to injury or illness, shipwreck in the sea. Or, and the protocol adds here a category that was not explicitly mentioned in the conventions before, because a fighter would have lost his senses, and therefore he can neither surrender, all the same, at that moment, he would not be attacked. It's always the same idea that you shouldn't attack a combatant out of combat. There are the programmes of this rule in Article 23.c of the 1907 Hague Regulations, and now a well-written rule, well supplemented also in Article 41 of Additional Protocol I. There are also very fine post-World War I criminal law cases already where people have been convicted of directly violating this rule and shooting at enemy combatants who have surrendered. The Germans, at the time, when they sank an enemy ship and the British military escaped in makeshift boats, often fired on these boats and sank them as well. The main reason he did it was because it was an underwater war, the Germans didn't want to be located for a certain period of time to have time to get away. However, if we have wealthy boats, we can immediately see where the attack took place and therefore we expose ourselves to punitive action. If you sink everything, nothing is more visible on the surface of the water and you have more time to move away. That was the military reason for these actions. Nevertheless, it was directly contrary to the applicable rules and there have been convictions to that effect, criminal convictions.
The same rule is applied in another case and this is new. This is the essence of Protocol I and the rule may not be customary, it is debatable. It's article 42. A highly controversial provision at the time it was included in the protocol, in 1977. This is the rule according to which a belligerent cannot attack an enemy combatant who parachutes down from a losing aircraft. We have to imagine the following situation: there is an international armed conflict between two States, an enemy aircraft is hit, either by a ground-to-air missile or not another aircraft, an air-to-air missile; in any case, the aircraft is hit and we see a huge cloud of smoke coming out of the aircraft, the aircraft pricks its nose and then the pilot or even the personnel who eject with a parachute. In this situation, the protocol requires that during the decent parachute personnel of the combatants, they cannot be attacked, i. e. pulled. When the people concerned arrive ashore, they have the choice of surrendering or not surrendering. If they fall into adverse lines, either they surrender, they do not engage in hostile acts and are at that time prisoners of war, or they do not surrender, attempt to flee or use weapons, at that time, of course, they can be attacked, shot and killed.
The rule was very controversial. And we understand it if we understand a little bit about military action. For a number of States, it was difficult to agree not to fire pilots in descent or military personnel in descent because it was a perfect opportunity to do so. Militarily, it is a great advantage to get a pilot because you have to realize that, as far as an opposing pilot is concerned, there are not many who are capable of flying fighter planes, he is a very high level soldier and above all he does a lot of damage with bombardments and everything else. So, having the opportunity to neutralize him at the time of the decent is a great temptation especially since he can run away afterwards, we don't know where he will go down directly, he can be recovered by his own forces or he can try to fall into his own lines as he can direct to a certain point and also his descent and therefore he can escape us and then he takes the next plane and continues to bomb. The bombardment is heavy, it's a soldier who does a lot of harm. So, the temptation to bring him down is indeed very great. The added value here is not only the humanitarian principle, but also, indeed, somewhere, the military honour, namely that you do not shoot down an enemy soldier in the phase when he is defenceless. So that's the rule that's now in the protocol.
We must be careful to apply this rule only in the case where the aircraft was first lost, a lost aircraft, either because it has been hit or because it is no longer controllable, and there are signals given at that time, there is a whole code that indicates that the aircraft is no longer controllable, and at that time, the descent is protected. But not, of course, a parachute descent of combatants on military missions, these are not protected by the rule. So when the Germans were jumping on Crete during the Second World War; the Germans went there mainly with planes parachuting the military, but for their military action, they were not planes in distress. In this case, it is a military mission, of course it is possible to fire people who come down as much as you want and can. The rule obviously does not apply in this context. On the other hand, it does not apply either if you have a plane in trouble, but when you descend by parachute, the pilot or the fighters perform hostile actions. That is to say that if this pilot for example, in addition to having a weapon on him and shooting, then he can be shot.
Non-combatant combatants cannot be attacked, they are legally assimilated to civilians from the point of view of immunity from attack.
Finally, there are military persons assigned to medical and health protection, bookbinders; these persons also cannot be attacked. They enjoy immunity from attack, as is already the case in the Geneva Conventions. The protocol does not repeat this. However, there is Article 15 of Additional Protocol I, which concerns mainly such civilian personnel. So, if we have army toilets, these people cannot be attacked while they are engaged in their health activities. Army medical personnel are not necessarily permanent medical personnel. There are "flying" health personnel, that is, personnel who have a health unit, who follow the troop, but who are fighters like the others, but who simply have an additional armband in case there are casualties or deaths, can put on the armband at that time and devote themselves to their medical task for a certain period. If you have a small military detachment in the mountains, you can't afford, very often anyway, to have a soldier who follows others without doing anything and neutralized all the time, so you get him to fight until there's a need to treat someone. So that person is involved in the fight, but can get out of it and become a health worker at some point. The most common case is that the health personnel are always on duty, and at that time it is even easier.
The prohibition of attacking civilian objects[edit | edit source]
The applicable rule, one of the most important in the Protocol from both a theoretical and a practical point of view, and in Article 52 of Additional Protocol I. Again, there is no rule before article 52, there is of course customary law and always article 25 of the Hague Regulations, but the first time the rule was formulated with the clarity with which it is now formulated was in 1977.
The first thing to note is that we find the same negative definition for objects as for people. And for the same reason. So there are only two categories of objects. There are either military objectives that include both persons, combatants during the phase when they can be attacked, and assets that are used for military action that are military objectives. On the other side, there are civilian objects. As soon as something is not a military objective, that is, it does not meet the criteria for military objectives, it is a civilian good. We will see that it is a quite remarkable definition that makes the lawyers laugh at the Philistines, believing that they hijack absolutely everything; yes, because a property that is intrinsically military, such as a fighter aircraft, if it does not meet the condition of a military objective at any time because there would be no military advantage to attack it at that time, that fighter aircraft, during a phase, becomes a civilian object from the standpoint of IHL, it cannot be attacked. The military aircraft is a civilian object from the point of view of the IHL category if it does not make a military contribution or if there is no more military to attack it. This is a very good example of the relativity of legal terms. Civilian property here means nothing other than this, "cannot be attacked", because the military objective can be attacked. It is therefore a negative definition; automatically, anything that does not fall within the military objective is a civilian good and is therefore protected against attack.
Now, of course, we must define the military objective. We cannot say "is a civilian good everything that is not a military objective", and at the same time "is a military objective everything that is not a civilian good"; that obviously does not work.
It is therefore necessary to define the military objective and how it can be defined. There are, if you look at it carefully, only two ways to do it. The first is not intelligent and has never been seriously tempted. The second may seem a little superficial at first glance, but it is in fact the only practicable one and is frankly not a bad way. What are these two theoretically possible approaches?
The first is to make a list of objects that can be attacked. The list may be long, of course, but in the end, we go through a list. The second way would be to waive a list and indicate criteria according to which a military commander must, but also may decide in a given case whether a particular object, because it meets the conditions of the criteria, becomes a military objective. We indicate here the criteria, we do not indicate the objects that we can attack, but we indicate the criteria according to which in a given case, it will be possible to decide the fate of an object. This, of course, gives a certain latitude, but also a certain responsibility to the commander and also to the legal advisers called LigAd in the modern armed forces to give legal advice.
The enumerative approach or the contextual approach, the protocol is strongly in favour of the contextual approach. No list, only criteria. Of course, we could have combined the two too. We could have made an illustrative list and then had a general criterion at the end, but we gave it up because the list would be very incomplete and this would immediately give rise to uncertainties.
Then why is the list not practicable? Why is that not a good idea?
There are superficial reasons, but also deeper reasons why this is so. The most obvious superficial reason is not bad. In any case, the list would be incomplete because new military assets are invented every day and it would therefore have to be constantly updated and, in any case, things that can be attacked would be forgotten and this would not be very practical. Moreover, if we have a list with, say, 3514 objects, it is frankly not very practical for a soldier to attack an object. It's not very practical.
But there are deeper reasons as well. The reason is that, if we go directly to the most important of them, if we look at them carefully, there is not an object that is inherent to a military objective. There is no such thing. Because even a military object by nature cannot always be attacked. You have to have a military advantage to do it, you have to keep it going militarily. The guns in Bern near the barracks, which date from Napoleon and which no longer function, are military goods, attacks can no longer be carried out because they are no longer used militarily. So the list would not be useful and would be too broad anyway. And then, moreover, no good, no good, no thing is ever a military objective or can never be a military objective. Any good can be a military objective if you look at it carefully. Why? Why? Let's take a tree, is it a military objective, would we put it on the list? In itself, a tree is a civil object. But it goes without saying that a tree can also become a military object or a military objective because if you hide weapons on it, for example, it becomes a military objective. The University of Geneva is in the Unimail building, is a building dedicated to education under the terms of Additional Protocol I. So it's a civil building in essence, it's a university. But obviously, if during the armed conflict, fighters arrive in the building and say that the Unimail roof is practical because it is high and you can shoot well, and at the same time you bring weapons, then this building becomes a military objective, that is, it can be attacked because there is a military action taking place from this building. The building is used, the building itself and not just the fighter who is there. The building offers a military advantage and a military contribution because the roof is high and this has a strategic value and it is used militarily, it makes this building a military objective in this case. Because, if there are no combatants and no arsenal and no weapons, it does not become a military objective, so, in any case, we should look at the context of what it is. The list would not help because the university would not be put there as a military objective, but it can become one. So, quite simply, we have to go contextually, there is nothing to stop us from doing so.
This gives us the following rule in Article 52 § 2: "Attacks must be strictly limited to military objectives. With regard to property, military objectives are limited to property which, by its nature, location, purpose or use, makes an effective contribution to military action and whose total or partial destruction, capture or neutralization offers a specific military advantage in this case". Every word here is necessary, it is a true formulation of a lawyer and not a journalist, even in the use of the word "effective" that journalists like, but which here has all its meaning, we cannot remove it without losing something. Many adverbs and adjectives, each one has its legal function, none would be deducted to the point.
This is one of the most important objects of the law of armed conflict, it is military objectives, because, after all, on reflection, even if only summarily, we realize that the military objective refers to the only object that armed forces can attack during the armed conflict. There could be no more relevant and important question.
We have seen that military objectives are a key provision of Protocol I. On the other hand, the definition is once again negative, namely that we do not define protected objectives, civilian objects, but rather define the objects that can be attacked during the armed conflict, namely precisely military objectives.
If we look at this provision, we realize with an X-ray analysis, that behind all the necessary embellishments, however, there are two fundamental elements, so there are two fundamental criteria for deciding whether a particular object falls within the military objective. In extremely short terms, it is the military contribution that this object makes and the military advantage to its neutralization or destruction. If we get even more to the heart of the matter, more advantageous contribution makes the military objective.
More advantageous contribution. The two criteria are cumulative as indicated by the "plus". It is therefore wrong to say that since there is a military advantage to destroy a certain object, it is a military objective even if there is an advantage to destroy it, but that the object is not a military contribution, it cannot be destroyed. The finance hotel may have some use in destroying it because the government will be less able to finance itself, but the finance hotel does not make a military contribution in any direct sense anyway. The effort of the protocol is always to restrict the objects that can be attacked, because if you define things too broadly, there is literally nothing more that could be attacked.
Let us look at these elements in turn and first the contribution with all the terms surrounding it and then the advantage.
Contribution, what does the word itself mean? It is simply that an object provides services or is useful for military operations. The way in which an object can render services or have a military utility is detailed in the provision we look at through the terms "nature", "location", "destination" or "use". It should also be noted that there is the word "effective" in the text. Effective contribution to military action. As mentioned above, in legal texts, one can never think that a word is useless. This is the principle of interpretation of useful effect; moreover, each word must have its own meaning, because otherwise the drafters would have eliminated it. The word "effective" here refers to the fact that the contribution must be current, i.e. not simply potential or hypothetical. It is obvious that an object could make a military contribution and that in this respect in the field of potentialities, there is no object that it could not make a military contribution. However, the word "effective" does not mean that the contribution might not be future if only it is firmly intended by the parties and this is apparent from the use of the term "destination" in the list. An object can make its military contribution also by its destination. That is, by the purpose assigned to it and that purpose may also be located in the future, but in this case there is a certainty, something is intended for a certain military purpose and at that moment, the opposing belligerent can destroy that object, he does not have to wait for it to be put into service to his detriment. In this sense, the term "effective" suffers from a very small amplification.
Let us now turn to the four categories, namely "nature", "location", "use", "destination". Note that this is an illustration, the list is not exhaustive although it is not really imagined how an object should still make a military contribution other than through one of these four channels.
Very quickly a comment on each of these elements:
- Nature: An object makes a contribution by nature to military operations when it is intrinsically military equipment or buildings. This is the case for military vehicles, tanks, ammunition and weapons of all types. It should be noted in this regard that military equipment is never "out of combat". In other words, the fact that an ammunition depot is not used today, but could be used tomorrow, does not mean that it cannot be attacked. The opposing belligerent does not have to speculate on when his opponent will use his ammunition or whether he will use it. It would still be nice to have to speculate on that. It can attack this kind of equipment at any time simply because it can be used tomorrow. This too is not an obstacle to personnel strength because, of course, military equipment is produced and cannot be used in each of these elements at the same time. Military action is being staggered and it would still be surprising not to allow intrinsically military equipment to be attacked on the pretext that it is not being used at this very moment. Of course, you need the military advantage, even military equipment cannot be attacked if there is no military advantage to attack. This is quite obvious, but here we can already discuss the military contribution for historical military equipment, Napoleon's guns in Bern no longer make a contribution today, but this may also be true of planes that would have gone to a neutral country, at that time they probably no longer make a military contribution, but there is no military contribution either to destroy them and at that time, even equipment of that type, at least for a certain period of time, might not be "attackable". We must therefore check both things each time, "contribution" and "advantage", but often there will already be the contribution that will fall in the cases mentioned.
- Location: an object can make a military contribution also by location. There are places that have strategic value, such as bridges or railways that are important for the transport of military personnel or equipment. However, these places must already be used for military purposes or at least it is conceivable that the opposing belligerent will use these places in the near future, otherwise, the criteria for the number of troops will not be sufficient. But we are entering into matters here that are quite difficult for a belligerent because he is not called upon to speculate too much. That is, if we have a stronghold of this kind, the presumption will be that it can be attacked. Specific information or assurances should already be available from the opposing party that this bridge will not be used for military purposes, for example, in order for the attack to be unlawful. This may happen because, of course, a bridge that would only be used for military purposes, so assurances of this kind would not be given, but bridges even in strategic places can be important even for civilian transport and at that time a belligerent could very well find some interest in giving an assurance to the other belligerent that he will not use these bridges for military purposes so that it is not destroyed and that supplies for civilians are not cut off themselves.
- Use: This is the field of use of an object that has no military purpose. That is to say, we do not have here an object that is intended for military use, nor do we have an object that by its nature is military in the sense indicated earlier. These are normally civilian objects that are simply in the given context, used by the belligerent for military purposes. The Unimail building is a building that in the vocabulary of Additional Protocol I is intended for education, a civilian building therefore, but which could perfectly well be used in an armed conflict also for military purposes if weapons were hidden there, personnel were put on the roof, an anti-aviation DCA on the roof or other. In this field of use, any object can be transformed into a military objective simply by being used for military purposes. It can be a window, a tree, a building, literally everything.
- Destination: this is the future use, but wanted by the belligerent. It has a certain object for military use. If it is already being used militarily, we are already in the category of use and we do not need the destination as a separate category. That is why this category inherently affects future uses. In the case law, the best example is found in the arbitration award of the Eritrea-Ethiopia Commission in 2005. It was a power plant in Hirgigo. The question is whether this power plant could be attacked. There was a power plant more or less in the desert and under construction. Normally it would have been completed a few weeks later and electricity production would have started at that time. It was expected to produce a certain rate of electricity, the majority of electricity for civilian purposes, but it was also expected that a percentage of electricity would be used by the army. This plant was attacked before it was completed, before it produced electricity and the Arbitration Commission considered it to be a military objective for various other reasons as well, but also because it was intended even if only partly for military use. Destination, therefore military contribution and then military advantage was also stated in a separate analysis. This effective contribution, by nature, location or purpose, must be to military action as stated in the protocol. Military action means military action and nothing else. We can also say "military operation", but it is better to stick to the exact word used in the protocol provision. It would therefore be wrong, seriously wrong to say that it is enough for an object to contribute to the war effort or a formula of this kind, because that is exactly not it. Any object can be used for a war effort, the taxes we pay are used for the war effort when our state is in armed conflict. Professor Kolb is not convinced that one is a military objective because one pays one's taxes during a period of armed conflict. It is therefore to military action, i.e. to military operations, whether it is offensive or defensive. These are military operations on the ground. That's what an object is for.
In addition, the attack must aim to neutralize or destroy the object in question or to present a military advantage to the attacker. It is therefore an additional and cumulative condition. An object that makes a military contribution, but where as a belligerent does not have an advantage during its destruction, is not a military objective in the sense of the protocol. An object for which we have a military advantage when we destroy it, but which makes no military contribution in the sense indicated, is not a military objective in the sense of the protocol and as we have seen, it automatically becomes a civilian object, or at least for a period of time because circumstances may change, military objectives may vary, the military contribution may vary, at a moment there are none, but perhaps tomorrow there are and therefore the equation always changes. The key word in terms of military objective is the relativity of situations and therefore will require reanalysis each time and this is what commanders do with their legal adviser.
The advantage now, what is an advantage?
An advantage is anything that makes something easier. Here, as it is a military advantage, it is a matter of facilitating military action or military operations. They are facilitated by destroying certain objects, that is, by weakening enemy armed forces or their equipment. But you can also have a military advantage by strengthening your own defence capabilities through an attack. Because, here too, it is always relative. The opponent's weakening can be obtained by weakening him directly, but it can also be obtained indirectly by strengthening himself. It is for example an attack on a prisoner of war camp. The adversary holds prisoners of war who have nationality A. Bombarded the prison camp with prisoners to free prisoners A. A does not bomb itself, the goal is not to kill its own men. Bombarded the camp in a way that allowed them to escape. The opponent is not directly weakened, but A risks strengthening himself because if these men flee, they join the ranks of A and A again has a few more fighters.
Second, an advantage must be military. Once again, the word could not be deleted, it is not just any advantage, but a military advantage in the barely indicated sense. It should therefore facilitate military operations by giving me a relative advantage. But it therefore limits the type further, excluding a whole series of other benefits that may indirectly be of interest to the military as well, but as such are not military benefits. For example, these are the psychological benefits. The Anglo-Saxons have been very fond of it for years and we have tried to explain to them that each time it is incompatible with the protocol. Hitting the morale of the population so that the population puts pressure on its leader, a dictator so that he agrees to conclude a peace, is not a military advantage for the protocol. This would easily lead to the bombing of civilians or terror attacks, which is hardly compatible with IHL. It should be noted in passing that the psychological advantage of trying to strike a symbolic target such as television stations or other symbols of power, such as ministries, is that such attacks themselves from the point of view of what the attacker is seeking, are more than ambivalent. A population rarely weakens when attacked in this way, on the contrary, it tends to reinforce its fierce determination of resistance. It was certainly not the terror bombings of London, Coventry and other cities that caused the British to falter. The Anglo-Saxons would do well to remember this, the practice is not really moving in this direction. We observe that many times this type of building, ministry or television station is still being attacked in Libya in 2011. So it's a very recent practice again, on this subject, there is a significant difference of opinion between continental and Anglo-Saxon people. Here, we rely on the word "military" contained in Article 52 § 2.
The same applies, of course, to financial, political or other benefits for the same reason stated. If all these advantages were sufficient, too many objects would be designated for the attack, with civilian collateral damage skyrocketing.
The third remark on the advantage is that not only must it be military, but it must also be precise. This is the very last word of 52§ 2: "a precise military advantage". The word, once again, is not useless, it parallels the word "effective" in terms of contribution, has the same function as "effective" in "contribution", here it is precise for "benefit". The specific benefit is in contrast to a hypothetical benefit. It also opposes indirect benefits that become speculative. Obviously, we can always say that we expect a military advantage after a domino theory, a prolonged chain of causality and then we expect to have this or that advantage in the end. If we allowed this kind of game, we would be relying on pure speculation. Therefore, indirect benefits are not prohibited, they must be sought, but the causal link must be very close and there must be no pure speculation. It is obvious, for example, that if we attack computer systems, we will probably not have an immediate military advantage, military operations in progress will obviously continue unless they need computers to operate, but we can make it more difficult, depending on the case, considerably inhibit the adversary's military planning capacity for the future. This is a clear advantage even if it is not immediate in time, but it is not speculative in this case and that is what is essential.
There is still one more term, and it is most important in the protocol, because this military advantage must appear in "this case". It is a word that is thrown out there because we are too talkative, because we are afraid of the nakedness of the formula. Here, "in this case" makes sense. It's not just like that by accident because we're too talkative. And this is even crucial, because the advantage must appear in a concrete perspective, i.e. at the time of the attack. This is when the benefit must exist. If it does not exist at that time then the objective is not military. This means that during the planning stage, it is necessary to check what is expected from the neutralisation or destruction of this object and that this judgment remains a process that even during the execution of the attack, the pilot must still have the possibility, if it is an air attack, to consider changes in the equation according to his possibilities, to ensure that, if it appears that the advantage is no longer in relation to the objective of the attack that has been communicated to him, he can stop the attack. In any case, it is always at the concrete moment that the advantage must appear, and this therefore shows that we are in a universe of perfect relativity. An objective can be military at 12:56 and stop being military a few hours later and become military again the next day. There is hardly anything that is a military objective by nature except that in many cases military objectives by nature can be attacked all the time, but even they may not even be a military objective at a specific time if there is no more to attack them. This may be the case, for example, at the very end of the armed conflict if a definitive armistice is expected in the coming hours, although this may be ambiguous. It may be that there is no longer any military advantage to certain destructive actions in such a phase.
A final general problem remains to be addressed in terms of military advantage. It is the problem of the unit of measurement of an attack within a military operation to judge the advantage. It is clear that a military operation often involves a coordinated series of attacks. If we take the air force, because it is nevertheless a very popular means of attack today, at least by the West, there are missions that are assigned to a whole series of airmen sometimes over days, even weeks, and it is obvious in this context that if we want to judge the military advantage separately from each operation, each singular bombardment, the advantage may not appear. While if we take the military operation as a whole, because it is obviously through this military operation as a whole that we aim to achieve a certain military objective, we aim to achieve a certain goal, at that point the advantage could appear. A very banal example and, if we give the order to attack broadcasting stations because we believe that this station broadcasts military messages, and we consider only a specific attack on a specific objective, on a specific broadcasting station, we could say that there is no more military to attack it because there are still twelve other stations, then there is no point in attacking that one because in any case we cannot interrupt the opponent's broadcasting. These stations are only used at 50% each, they still have capabilities, so if we attack that one there are still twelve others, and the opponent will simply go through the others and therefore the military advantage is zero. But if we look at it and realize that all twelve, or thirteen then were attacked, it looks different. It is obvious that if all of them have been attacked, in this case the military operation as a whole, and at that moment the military advantage obviously appears because all the stations have been destroyed and therefore, obviously, we have obtained a considerable limitation on the adversary's ability to communicate militarily. This might also be the case if six out of twelve had been attacked because a considerable reduction in military communication capacity can also be achieved there. This example is very simple and in other cases it is more complicated. What is most complicated is to decide what the unit of measurement is because the higher you go towards the general, the more inclusive the military operation becomes and the more the advantage appears. But if this becomes too encompassing, the whole international armed conflict is basically only a major military operation and then, if that is what it is, the rule we are considering, Article 52§2, loses all its contour in relation to military advantage. However, it is quite obvious that we do not have a very clear answer in this regard and we will see that some States placed reservations when they ratified the protocol to remind us in any case that military advantage must be judged, to remind us that we must look at a military operation as a whole to judge military advantage and not just individual attacks.
The particular problems concern 52§ 2 in its two aspects, contribution and advantage, i.e. concerning military objectives in general.
First of all, there are the mixed properties. A mixed property is an object that serves both the military and civilians at the same time. It can be a bridge that serves both military and civilian procurement. Maybe this bridge is used to supply a hospital in the area and maybe patient survival depends in part on that supply. What about such mixed objects? We do not have a specific analysis for them. There is only one particular element to consider. A mixed object is a military object if it meets the conditions of military objectives and it may meet them since it makes a military contribution, it serves militarily. Assuming that it exists, it is simply a military objective and can be attacked. The only particularity of the attack on objects of this type is that, since it also has a civilian component, the belligerent who attacks them is obliged to consider proportionality, i.e. the collateral damage caused on the civilian component. In the case of the bridge, he should consider his military advantage, but also the damage he causes to civilians and weigh the two. With the principle of proportionality, we are here in Article 51 § 5.b of Additional Protocol I and we are no longer in Article 52 § 2.
Unnecessary destruction by revenge, for example, is obviously prohibited under the protocol because it would not give us the military advantage to seek. Third, property that is normally used for civil purposes such as the Unimail building is presumed to be used only for civil purposes. There is therefore a presumption, as for people, that a civilian object is and remains a purely civilian object and is not used militarily. There should be positive elements to establish that a building such as Unimail is used militarily in order to attack it, in Article 52 § 3 of Additional Protocol I: "In case of doubt, property which is normally used for civilian purposes, such as a place of worship, a house, another type of dwelling or a school, shall be presumed not to be used to make an effective contribution to the military action". It is therefore presumed that a civilian object remains exclusively civilian unless it is demonstrated otherwise in this case by concrete information that is sometimes visible.
Let's try to see what it can do by varying a little bit, imagining hypotheses and updating the highly relative side of the military objective. It is a heavy responsibility on commanders to make the necessary decisions. But the law cannot be more rigid in this area because the targeting process is simply too multiple in the field to infer too strict rules. The rules are strict, but at the same time they leave a certain margin of appreciation without which IHL would be doomed to unrealism.
A belligerent attacks a broadcasting station which could be the RTS, a state broadcasting station, television, radio, for the general public, and at the same time it can be assumed that this broadcasting station, through the very sophisticated facilities at its disposal, can also serve and is also used to transmit military messages. It is common for the State to also use these civil broadcasting stations, including for military messages. Sometimes, it is even rather anecdotal, we know that during the occupation of France, instructions were given from London with messages communicated through the radio. Now, the question arises as to the extent to which such an attack can be lawful in IHL according to the criteria of 52§2. First, let us note that it is a question of facts that we cannot therefore empty abstractly, we need information, because if the broadcasting station in question does not transmit any military message or have the capacity to do so, it remains exclusively civilian and cannot be bombarded assuming that it is now an air attack. But if it is otherwise, a question of fact, if military messages are transmitted, then there is an effective contribution to military action, the messages are transmitted to the front, and the military advantage may appear. Here, some issues will need to be considered more closely. The first set of questions is whether there is an advantage in itself, without any question of proportionality. Proportionality concerns collateral damage on the civilian side. Military advantage, yes or no? If we attack only one station in twelve in the total that in the same city make transmissions with the same capacity, range and so on, the military advantage may not appear unless it destroys them all or a greater number than one, or perhaps the advantage appears anyway: if all twelve or thirteen stations, depending on how they are counted, are already at 100% of their capacity, by destroying one, there is perhaps a military advantage because we still succeed in reducing the flow of information. If these stations are only used at a small fraction of their capacity to transmit military messages, it may be different. It depends on the information we have in this regard, it's a question of fact. Another hypothesis is that military messages are indeed interrupted and that this may seem an advantage because military advantages can actually be interrupted for a certain period of time, but the opposing belligerent must be expected to restore communication in two or three hours. Today, restoring a communication station when you have a few able-bodied technicians does not take much time and indeed, when the Westerners bombed the broadcasting station in Serbia in 1999, after three hours, it was put back into service. If, therefore, such a rapid repair is to be expected, it may well be that the military advantage does not appear because to interrupt military messages for three hours, there may not be a tangible military advantage and at that time the object is not a military objective. But it can be otherwise and it depends on the fact again. So it is impossible to say it abstractly from the outside. If, for example, we are in the invasion phase as during the D-Day in Normandy, and we say to ourselves that this is the crucial moment, a militarily very delicate moment, we must interrupt the enemy's communications not for two or three days, but for four or five hours at the crucial moment. At that point, we manage to interrupt them perhaps only for three hours, even if we say a few hours depending on the spare parts they have found from their organization more or less good, even only three hours of interruption can be crucial in the context. At that time, the military advantage was there, and greatly, royally. All this is highly contextual and we must look at the information we have and the purpose we are aiming for and that we cannot make judgments in this regard from outside. This is why even journalists who ask Professor Kolb whether or not it was lawful to attack this, he must tell them every time we cannot tell them, he does not have the documents, he was not in the General Staff to know what was being pursued through the attack, whether the attack was singular or whether it was part of a series of attacks. You have to know the case to make a judgment. We can imagine other variations such as the radius of the transmissions. Perhaps one of the broadcasting towers is more powerful than the authors, it may have a greater geographical reach, it has state-of-the-art facilities. There are certainly eleven other stations in the city that can transmit messages, but the others are old-fashioned, they do not have the same transmission capacity or they cannot transmit coded messages while it can transmit coded messages. At that moment we drop some bombs on the right one, the strong one of the stations. At that point, we can no longer hold to the same logic of saying that there are the other eleven, but no, because apparently they cannot transmit the same messages, the coded messages or they do not have the same radius, they cannot reach the same military forces and therefore the military advantage reappears in the latter case where it disappeared in the first case.
There is another criterion that comes into play, which is proportionality, collateral damage, because obviously in the broadcasting station radio station, there are civilians too, it transmits military messages, it is a "military objective"; but at the same time, there are all the civilian staff, there is the civilian function. So how will we judge at that time the collateral losses?
A provision also has the great characteristic of being at the heart of military law, it is a provision that Professor Kolb very often discusses when he is serving in Bern, namely Article 57 of Additional Protocol I. It is one thing to know that only military objectives that are defined in terms of contribution and advantage should be attacked. Knowing that excessive collateral damage should not be done is another thing. But all this requires a good information base and good preparation of operations. If a belligerent haphazardly attacks, he risks making mistakes and the protocol tries to avoid him in order to limit the attacks strictly to military objectives and to ensure that civilians do not overstretch. This is the whole purpose of article 57, the title of which is "Precaution in attack".
The primary purpose of article 57 is to spare civilians as much as possible from the effects of attacks. This is already apparent from the section in which this provision is inserted, Title IV, "civilian population", and then Chapter III, "civilian objects, precautionary measures", 57§ 1, "military operations must be conducted with constant care to spare the civilian population, civilians and civilian objects". We could not be clearer on this orientation towards the protection of civilians.
The scope of Article 57 is broad. It concerns not only the military commander and the legal adviser, but also any military personnel who have the power to influence the decision or the manner in which an attack, whether offensive or defensive, is carried out. So, also the pilot, if we stay in the air war, at the time of the execution of the task that will have been assigned to him.
What are the components of this precaution that the belligerent must take? There are the various paragraphs and sub-paragraphs of Article 57.
Let us comment by verifying the objectives to ensure that they are really military objectives. This is the purpose of Article 57 § 2.a.i. First of all, it should be noted that the belligerent is obliged to do "everything possible to verify that the objectives to be attacked are neither civilians nor civilian property, etc. ». So, a duty to do everything that is practically possible, which is a matter of fact. And, beyond the question of fact, a question of good organization of the army. Sometimes also simply the proper use of the resources, including technology, that an army has at its disposal. This also means that the obligation is flexible. We can expect more than one well-organized army that has been involved in armed conflicts such as the American army; it would probably be politically more correct to say American. It will probably be less possible to be so demanding with an army from a Third World State with much less resources.
This formula, "everything that is practically possible", must also be read to distinguish certain cases, namely first of all cases where there may be doubts about the quality of an objective, contradictory information about its nature, is it still a military objective, has it been reassigned, is it really an adverse government building or is it by chance the Chinese embassy and so on - it was attacked during operations in Yugoslavia in 1999. So, in case of doubt, there is an obligation to check all the more meticulously. The same would apply if there is significant collateral damage, but this is not a problem of verifying the objective, it is a little broader, if the danger of significant collateral damage appears, i.e. if there could be many civilians around the objective. Therefore, meticulous verification of objectives to determine their location, scope and functions.
Secondly, "ensure that civil collateral damage is minimized". There is to verify that the objective is military and on the checklist it has been determined.
The obligation now is to take all feasible precautions in the choice of means and methods of attack in order to avoid and in any case minimize civilian casualties. This provision is important, Mr. Kolb's internationalist colleagues often forget it, he witnessed it in February 2015 in Paris and pointed it out to the colleague in question who had forgotten it that next to 51§ 5.b, there are also 57§ 2.a.i. The difference is that in Article 51, collateral damage is quite acceptable. The logic of Article 51§5 is to say that if a military objective is attacked, as long as the collateral damage is not excessive in relation to the military advantage, so long as there is no abuse, a manifest disproportion, there is no unlawful act. 57§2 goes further because it requires in any case that the belligerent make an effort to minimise this collateral damage in the sense indicated. In other words, there is a stronger duty during the planning phase to avoid collateral damage as much as possible, and as for the result when moving to Article 51, damage is acceptable if it is not excessive in relation to the military advantage. It is therefore a complement used to Article 57 in this respect. You have to try the minimum even if you can't get it. That is, in very short terms, the logic at our disposal.
How can we then try to minimize civilian casualties? There is no way, but it all depends on the context and the techniques are diverse and varied. We can therefore only give examples. Then we can see what is possible in a given context and what a belligerent has at his disposal.
We can have and use laser-guided weapons. Perhaps not if you are a third world country that does not have one, but if you are a highly developed army, you have laser-guided weapons and when you attack certain objectives, for example those where you have to expect serious collateral losses, you may be tempted, and the protocol invites you to use a laser-guided weapon in any case. Why? Why? Because such weapons strike much more accurately. If ever the term "surgical strike" makes sense, it is in relation to these weapons. They can be very easily "impacted" a few centimetres from the target, which is not the case with traditional shells or other traditional bombs.
The major disadvantage of these weapons is obviously purely financial because a laser-guided weapon costs hundreds of thousands of dollars per unit and is therefore expensive. And so, this aspect must also be taken into account. IHL does not require the belligerent to use only weapons from the last laser-guided cry, etc.; this would not be possible because many states do not even possess them. Of course, if we have this option, the protocol invites us here precisely because it allows us to minimize losses.
Then there is the extensive reconnaissance of the terrain. This is what the Anglo-Saxons call air-skanning. So we check by satellite images, or sometimes simply by aircraft, for reconnaissance that delivers images, and we do a very specific reconnaissance in the field to see where is located what to determine if there are hospitals in the region, if there are cultural properties, if there are other properties; this can be very important not only because we have a military objective there and a hospital here, but from the point of view of the firing angle it can obviously be very important. Because if we think that here is a military objective, and that there is a hospital, then obviously attacking with the plane that comes here and bombards in that direction is not the right option. As much as possible, another angle should be chosen. Because if the missile is lost for one reason or another, it will hit the hospital and that would be unfortunate. You should also know that there is a hospital to choose the angle of fire. Another example is that the military objective and here and there there is a village, and here there is a wasteland and there the forest, in this case, once again, we will choose the opposite angle which depends on the air control we have. Very often, we have a very sufficient air control that allows us to control different shooting angles.
It is possible to choose the time of the attack. If, for example, we know that we must attack the RTS because it makes important military contributions and we have an advantage, if possible we will choose night hours when the building is not crowded because we minimize the loss of human life in this case. We are not going to attack at 10 a.m. because we are going to expect that at 10 a.m. there may be maximum traffic.
It is possible to use techniques to limit the deflagration or fragmentation of bombs. Therefore, using weapons in such a way as to limit deflagration because the greater the deflagration or fragmentation, and the more in the area around the impact, there is a risk of civil unrest. Once again, this is only when there is a risk of collateral damage. If you attack a target in the middle of the desert, you can go even with weapons that fragment because there is nothing around and therefore no risk. The only purpose of the 57 is to avoid risks to civilians.
A final problem is that Westerners have sometimes used the flap technique relatively high in aerial bombardments to be outside the control of the DCA, i. e. anti-aircraft defences. When you fly at a certain altitude, you can't be shot down, which is certainly an advantage not to lose any more pilots. The pilot is not just any soldier, he is a very valuable soldier. When flying high, the risk is obviously to bomb with less precision unless you use laser-guided weapons, of course, but that is not always the case when you use these weapons. So, the higher you fly, the less easily you can calculate the impact and therefore the collateral damage is likely to increase. We would therefore have to say that the choice to fly high is a problematic choice from the point of view of the provision we are analyzing. This may be true, but we must look at each case on its own merits, depending on the weapons used. If laser-guided weapons are used, flying high is not a particular problem. While discussing with the military, Professor Kolb noted that we still have to think about something we don't always think about, sometimes flying low allows us to target more precisely, but at the same time it is not as safe to minimize collateral damage in this case for the simple reason that the pilot's stress increases considerably. Flying low is also a little more complicated from the point of view of relief unless you want to crash on the mountain, but that, normally, the pilot doesn't want to; and then obviously, knowing also that you can be shot down, you are on the alert and you know very well that when you are under stress you work less well even with much less decision. So it's ambivalent to fly high or to fly. In any case, it is a relevant question in the strategic choice of the point of the provision that we are considering.
Then, there is an obligation to refrain from an attack or even to cancel or even interrupt it and this is contained for the planning phase for Article 57§2.a.3.i, and for the execution phase, therefore cancel or interrupt in Article 57 § 2.b. The difference between letter a. and letter b. is that with letter a. we are in planning and in letter b. we are in execution. Professor Kolb takes the liberty of taking both parts together because it is basically the same thing, once in the planning phase and once in the execution phase.
To refrain from an attack in the planning phase is not to refrain from it, when having done all the verifications, it is a military objective, then you have to try to minimize civilian damage, and then it appears that whatever you do, the risk of collateral damage is likely to be very high, even if everything goes well, hundreds of civilians may leave for a better world. At that point, assuming that it is excessive collateral damage in relation to military advantage, the belligerent is asked to sacrifice that attack. This is therefore the purpose of 57.2.a.3.i.
Now, it may happen that during planning, this seems to work. Everything is well done, everything is well prepared, excellent, no excessive collateral damage is expected, and so the pilot is instructed to fly and hit a particular military objective with a particular angle of fire at a particular time. The pilot flies, he is above the military objective, he is about to press the button and he realizes that contrary to what the planners could obviously imagine; there is a school class going by at that moment and that if we bombard the objective which is not too far away, there is a certain risk that suddenly there will be many dead school children. Of course, the pilot will not press the button at that time. What he will do depends, if at that time the children are in transit, he can simply take a walk and return to the position to bomb a few minutes later. However, it may also be that he simply has to cancel the attack completely because it may turn out that there is not only a school class, but that the preparation has not been done properly and that up to the military objective, there are very important civilian buildings, there are churches, and that this cannot be done without causing too much damage. At that time, he must abstain. And even more so. It has happened, and the protocol also asks him, that after dropping the missile, it turns out at that moment that the school class leaves at the same time as the missile is already dropped, or because of poor visibility, it appears only after dropping the bomb that behind the objective with the risk of hitting it there is a cultural property or something like that; and at that point, we ask the pilot to the extent that he has the possibility, sometimes it is possible, if it is not possible, there is nothing more to do, but if it is possible it is to deflect the missile, to deflect the trajectory to cause it to crash where it does not cause damage. This has happened. From NATO aircraft, in one case, during the Kosovo war, a missile was hijacked in a forest because it turned out at the very last moment that there was precisely a cultural property, a Church behind the military objective, it had not apparently been seen, the preparation must not have been excellent on that side and as a result, the missile was damaged without striking the military objective, but without causing damage as well.
Then, the civil warning of the 57§ 2.c. attack: "in the case of attacks that may affect the civilian population, a warning must be given in good time and by effective means, unless circumstances do not allow it". Some people tend to think that what is in the law of armed conflict and either too realistic or too strict, and the professor retorts that it is always necessary to cite provisions that show that there is flexibility in IHL as with this provision. The purpose of the warning is of course also to avoid collateral damage. In the RTS building, if it were to be attacked, it could be that during the attack, a whole series of civilians would perish and it could also, and indeed should be expected, that if a warning had been given, perhaps a few minutes before the attack, these civilians could evacuate the building and therefore would not be hit and die in the attack. That is therefore what is required of the belligerent, but it is an exceptional clause. As we can see, it is only if circumstances allow it.
Circumstances allow it when it is a property that is not movable or movable, because obviously if we had moving property, if we warn beforehand that we are going to attack it, it will simply disappear and we will no longer be able to attack it. The moving targets, therefore, are generally impossible to prevent in advance, and whether or not it is possible to prevent also depends on the DCA, in other words, on the entire air defence system. If, on the other hand, we have total control over the sky, it is much easier to allow ourselves to prevent.
But therefore, as long as we do not endanger ourselves or the proper conduct of the operation, we must prevent it. We should only warn if civilians can be attacked. If you attack in the middle of the desert, you never have to warn. Attacking a pure military objective in the middle of the desert, there are no civilians around, there is never a need to prevent because in any case no civilians could be saved and the 57 only touches that, in the case of attacks that could affect the civilian population. If we take "population", there must even be a mass, that is, a number of civilians and not just one person walking in the desert.
The warning can be either general or special. We call a "general warning", the one that a certain target will be attacked, but we don't say when, we only say that this place or this building will be attacked. On the other hand, a warning is special when civilians are warned of a concrete attack, in a few minutes we will bomb the RTS. The warning according to the protocol must be effective. This means that it must be able to fulfil its function, that evacuation must be possible. This means that the number of minutes must be calculated. We can calculate very strictly, of course, in the sense that we must not be generous in the number of minutes allotted with a strict minimum necessary to evacuate, but it would not be sufficient to warn the opposing belligerent because he could not have the time to contact the people concerned on the spot. There are very different techniques to warn. Sometimes, there is still the old technique of throwing leaflets from an airplane or helicopter to say that there will be attacks in this region. There may also be communications made electronically. The protocol does not require a particular means of communication, it only requires that it be effective from the point of view of the intended purpose, i. e. in this case the evacuation of the premises.
Secondly and finally, it is the subject of Article 57§3 which is the choice of military objective causing probably the least collateral damage. This is problematic because even the military does not always understand and fear it. The military does not like this provision, whereas it is not unfavourable to them, it is purely rational. It is a principle of necessity and proportionality: "Where there is a choice between several military objectives to obtain an equivalent military advantage, this choice must relate to the objective for which the attack may be considered to present the least danger to civilians or civilian objects". Necessity and proportionality therefore, implemented here in an exemplary way.
There must be very clear agreement on the content of this provision and just as clear on what is not in it. Paragraph 3 is applicable to a situation where a belligerent has a specific purpose, and several military objectives each allow for the full achievement of that specific purpose in turn. In even clearer terms, the attack on each of these military objectives, each is sufficient to fully achieve the goal without the need to attack the others as well. At that time, if the attack on one military objective causes fewer collateral losses than the attack on another military objective, the belligerent must attack the one that causes the least loss. There are three bridges on an important line of communication through which military goods pass. We want to interrupt communications. To do so effectively, one of the three bridges must be destroyed. We do not need to destroy all three of them because it is a matter of covering a military operation that lasts a few hours, so we have to interrupt communications for a few hours, and to do that, we do not rebuild a bridge in a few hours. All you have to do is destroy one of them, you don't have to destroy all three of them to reach the goal. It now happens that the first bridge is located in the middle of a village. Turns out the second one leads directly to a hospital behind. It so happens that the third, between mounts, is in an entirely wild region. In this case, the belligerent should attack the third bridge, assuming of course that this is the line of communication and that by attacking this point, he can interrupt communications. However, he should refrain from attacking the bridge in the village and the other bridge that also leads to a nearby hospital because of the collateral damage it would cause. It is only in this case of a perfect alternation of military objectives in view of the purpose sought by the belligerents that the third paragraph can be applied. In other cases, we cannot because very often, the military advantage will be greater if we attack several of these objectives than if we attack only one. If we want to interrupt the line of communication more permanently, we may have to attack all three of them because it will interrupt military communication for a longer period of time, and that is the advantage we are looking for. If we want to neutralize the communication lines only for a few hours, then the perfect alternative appears. But if this is not the case and we want to interrupt this communication path more permanently because obviously the military advantage is increased, then paragraph 3 does not prevent us from seeking the greatest efficiency. Of course, care will have to be taken to balance military advantage with civilian collateral damage for the hospital perhaps, or the expected collateral damage if the bridge is attacked in the village, but this is another problem than the third paragraph, which concerns rather the choice between military objectives if they appear to be truly alternative to the intended purpose.
Article 57 makes it clear that this is a very important provision. In military practice, attacks are very often prepared and 57 is THE provision on the preparation of attacks from the point of view of IHL. Even for the military, it is a very useful provision.
A good example of the very meticulous implementation of article 57 can be found in the Libyan countryside in 2011. For weeks before the military operation, NATO planes flew over Libya to map very accurately the location of military objectives, civilian objects, in other words, a whole amount of preparatory work had never been done in military history before this conflict in 2011. Professor Kolb knows a lot about this, having discussed it with the legal adviser of the Dutch forces, about what happened, about a specific context, and it was very interesting, in his opinion.
The prohibition of indiscriminate attacks[edit | edit source]
Proportionality is therefore the problem of collateral damage, which is what journalists love. This is really a problem that strikes their minds and obviously they are doing well because it is what also marks the minds of the general population. Article 51 § 5.b states: "The following types of attacks shall be considered as carried out without discrimination: (b) attacks which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination of such loss and damage, which would be excessive in relation to the concrete and direct military advantage expected".
Context is the third part of our principle of distinction. It is the prohibition to attack civilians, the prohibition to attack civilian objects, and then the prohibition of indiscriminate attacks. These are the three components. We move on to this provision in the area of indiscriminate attacks. Indiscriminate attacks are regulated in Articles 51§4 and 51§5 of Additional Protocol I and in particular 51§5. There are two ways in which an attack can be indiscriminate. The first way is in 51§ 5.a, it is what we briefly call the "single military objective": "The following types of attacks shall be considered to be carried out without discrimination: (a) bombardment attacks, by any method or means, which treat as a single military objective a number of clearly spaced and distinct military objectives located in a city, village or other area containing a similar concentration of civilians or civilian objects;".
There is therefore an area with military objectives and with civilians. This is an area where there is a concentration of civilians. The belligerent may attack military objectives, but this he cannot do according to letter a. and to say that it is complicated to distinguish them, it is quite close, it is much better to bombard this whole area here and therefore we treat as a single military objective clearly spaced military objectives and we bomb carpets in this area because if we bomb carpets, we are sure that we have destroyed all three of them, whereas if we attack each separately, given the small size of the area, it is more complicated to achieve militarily. So, a carpet bombing is typically an indiscriminate attack because it does not distinguish between civilians and the military objective. This is prohibited. Of course, you can bomb with IHL carpets if you are not in an area where there are civilians. In the desert, there are distinct military objectives, you can carpet bomb a certain area, there are no civilians, the problem does not appear.
This raises problems of interpretation. Therefore, military objectives must be clearly spaced and distinct according to letter a. The question may arise as to whether they are clearly spaced and distinct military objectives. In principle, this sentence is interpreted as meaning that each time it is a question of self-container units and not military objectives where there is not only geographical proximity, but a physical link between the bridges. But this gives rise to discussions.
The second type of indiscriminate attack is collateral loss. This is the principle of proportionality. It must be said that "proportionality", as a term, has a special meaning in IHL. This is not at all the same meaning as in human rights law, for example. In IHL, proportionality fundamentally affects the equation that when attacking a military objective, the damage caused collateral to civilians must not be excessive in relation to the military advantage being sought. It is therefore a question of the equation between military advantage on the one hand and civilian casualties, which are the necessary consequence of our attack on the military objective. There must be a certain proportion between the two, between civilian casualties and military advantage. This is what is called the proportionality required in IHL.
How does it work? This is a very important issue, obviously in the media big discussions every time.
Article 51§5.b is a provision of very high importance: "attacks which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination of such loss and damage, which would be excessive in relation to the concrete and direct military advantage expected". This is the key provision for so-called "collateral" damage. What we are talking about here is that a belligerent attacks a military objective and only attacks a military objective, it does not target the civilian population and that is why, moreover, we are talking about collateral damage. Nevertheless, by attacking this military objective, because of the relative interweaving of these space objectives and the presence of civilians or civilian objects in the vicinity, some damage may be suffered by civilians even if the belligerent does not wish to do so. The military objective is attacked and the attack on the objective causes damage to civilians in an area around the objective, potentially depending on the weapon used, depending on the circumstances, the presence of accidental, known civilians, etc. This is the hypothesis we are now working on.
What can be said about this provision and how to analyse it? First of all, it should be noted that collateral damage and its settlement in Additional Protocol I as well as customary law is based on a hypothesis. These are expected damages. If we look at the very last word, "which we can expect to cause incidentally". It is therefore a hypothesis, a projection made by the belligerent. It is therefore necessary to avoid even what lawyers do. The conclusion based on actual figures of the damage incurred. A site, a military objective, is bombed, and then there are 16 civilians killed and 16 civilians wounded. This is not what is relevant for the operation of Article 51.5.b. What is relevant is what the belligerent could reasonably have expected. Was it reasonably foreseeable that there would be about ten, thirty, a hundred, a hundred or even more civilians who die or are injured as a result of this attack at this time of day with this or that weapon and so on - the judgment being as always contextual. This assumption obviously makes the provision relatively complicated in its application since we work with projections. It would therefore be wrong to conclude directly from the actual victims that there has been a violation of Article 51 § 5.b. Not that there is no correlation, of course. If we have five hundred civilian casualties, it is still likely that something did not work and that these victims are excessive in relation to the military advantage. But we will still have to see, we will have to see what was predictable because sometimes it can happen that the sequence of causality and what is happening in the field differs very strongly from what we might have expected. We can plan as much as we want, assuming that a certain building is still empty and that on that day, without us knowing it, 500 schoolchildren are there, a building close to the military objective, but we had no way of knowing it. At that time, even five hundred victims might not be excessive because they were not expected and they could not be expected always assuming that there was no negligence.
The first problem is therefore the hypothesis, which is difficult to implement and, especially from the outside, it is necessary to have the knowledge of the file. The second problem we have in the application of 51§ 5 is that the standard is relatively open. What must be compared, as we have seen in the provision, is on the one hand civil damage, persons and property, and on the other hand a military advantage. We will admit that both sides of the scale are not exactly equimorphic. It is difficult to compare a military advantage with civilian damage because they are two fundamentally different things. We can compare the rouble and the Swiss franc, obviously if we have a conversion rate, we can compare them, as long as we don't have any, it's a little difficult to compare them, or apples and pears as they sometimes say. However, we do not have this conversion rate very exactly and this gives the belligerent a certain latitude. What we can basically do is to prohibit excessive damage, clearly disproportionate damage; but that is basically what the 51§ 5.b. stand is all about.
So there remains the difficulty of comparison. When the proposals were made to the States, and they were made, to codify with a little more precision what proportionality implies within the meaning of 51§ 5.b, the States never wanted, either by binding standards, codes of conduct or soft law, to specify more precisely proportionality, and therefore collateral damage and the regulation in their regard, because of course this would further limit their discretion in a sensitive area.
The third thing that makes it difficult to apply proportionality is the standard, but what is the legal standard of 51§ 5.b? Excessive damage to civilians, therefore. It can therefore be seen that the equation is not that of direct proportionality. The protocol does not require that damage to civilians, whether to persons or objects, be in any way proportionate to the military advantage. Quite the contrary, the protocol requires only one thing, namely that the damage must not be excessive in relation to the military advantage. This should be seen as a concern for realism and probably also a victory for the military circles that have lost on many other aspects of the protocol, but not here. But this is not entirely unjustified and must be carefully considered. In an international armed conflict by hypothesis, a belligerent can only attack military objectives, nothing else, he cannot attack anything else as stipulated in 52§2. It would still be difficult to prohibit him from attacking those military objectives that make a military contribution and where there is a military advantage to neutralize or destroy them, it would still be difficult to prohibit him from attacking these objectives too extensively because, in the end, at that moment, he could no longer attack anything. This is why the protocol accepts a certain area of collateral damage. As long as we do not directly target civilians, but military objectives, war being war, we accept collateral damage. The belligerent will be asked to refrain from the attack only if his damage as he expects it, is still excessive in relation to the military advantage, and at that time, he is asked to sacrifice himself, to sacrifice military advantage for the protection of civilians, but only when it is really worth it. It is therefore a negative proportionality that is found in the protocol. Professor Kolb will not go so far as to say that collateral civil damage by presumption is lawful. But, the contrary position that had been supported by the ICRC commentator, commentary to the supplementary protocol, the book edited by Zimmermann and others, that significant collateral damage would still be prohibited, as they were always supposed to be excessive. This is a hypothesis that States have not accepted. So even significant collateral damage, even hundreds of deaths if the military advantage is only large enough to counterbalance it, are legal. If we win the war with a decisive attack, we can accept very significant collateral damage. According to Professor Kolb, under current law, Hiroshima and Nagasaki would have gone too far. But, we can accept significant collateral damage. How far can we go in this collateral damage, that is what lawyers would like to specify and that States do not like to specify. Since it is up to the legislator and not us, this clarification does not exist in current positive law. It is therefore necessary to work with these relative tools as indicated in the protocol.
On the other hand, what facilitates the application of Article 51§5.b is a political factor. For once, political factors make it easier for us to do so, they are worth mentioning. The reason is that the belligerents, those who engage in international armed conflicts, particularly Western states, have become very, very sensitive to collateral damage because it gives them very bad press. Imagine being in the newspapers or elsewhere as a state waging war against civilians, killing hundreds of civilians, that is simply not possible today, and that is why the belligerents take this provision seriously, not just because it is legal, but because they understand that war is not just field operations, but also psychological warfare, propaganda warfare, it is also the support that a certain cause can have.
To what exactly does the term "civil" in the proportionality equation apply? Civilian objects, civil persons, we have already seen this and we have already defined these terms more or less. However, this provision is also applied by analogy. It is not without dispute, some authors are going in another direction, but Professor Kolb thinks that the best argument is the one he presents: it is that when you attack medical units, you can do it in certain circumstances, when these medical units perform military acts, it is possible that in a medical zone, you start shooting, do military actions, at that moment they lose their immunity. When there are such attacks, it is necessary to consider the impact that these attacks will have on the wounded and sick as well as on medical personnel. However, these wounded and sick as well as medical personnel are not necessarily civilians, as they may be wounded and sick combatants, but protected by the Geneva Conventions. So, according to Professor Kolb, this equation must be applied by analogy in this case as well.
It should be noted that the complex judgment on what military advantage implies in relation to expected civilian casualties is a task, and therefore an assessment, that must be undertaken by the commander, i. e. senior military personnel. Normally, the commander is not alone. This is the area, 51§ 5.b. in which legal advisors have their most important role. If you talk to the legal advisers of the armed forces, they do a lot of things, but when the armed forces are in campania, one of their main tasks is to assist the commander in selecting the targeting process, and therefore to set the equation of 51§ 5.b to music.
One last point. Of course, we can try to punish ex-post facto, after the fact. We could also say post festum, after the party. Of course, the commander can therefore be punished after the disciplinary acts within the army, perhaps by a criminal trial by an international court, this has already happened although not very frequently. But IHL does not really care much about it. What happens after the conflict in criminal trials is what happens after the conflict, and well, perhaps by mandating effect, it is indeed by general preventive effect, but it is basically quite secondary. From the point of view of IHL, what matters is that the commander takes seriously and makes a good faith assessment. Good faith is therefore decisive because in operations, it alone is in possession of the elements of the file to make the necessary decisions. The commander and his legal counsel, of course. And that is what IHL is all about. If we do not have this good faith, it is obvious that rules such as that of 51§ 5.b are therefore pending. What helps us is the reciprocity pliers on the one hand, but also the pliers of public opinion and the press, which here does a very important, supportive work, Professor Kolb confesses that he often criticizes journalists for legal imprecision, but recognizes the importance of their work and here is an example of an important work they do and where they support us even if there too they commit imperfections suggesting that any collateral loss is against the law or such nonsense. But in short, it goes in one direction to put a little more pressure, and for once, it is even welcome.
Proportionality, in the law of armed conflict, refers to this as not causing excessive civil damage in relation to the expected military advantage. This must then be put into practice in the field in current cases, in the full context, taking into account all the changing circumstances of the species during the armed conflict.
Places and objectives immune to attack[edit | edit source]
These places and facilities that are immune to attack are sometimes civilian places and facilities and therefore enjoy the general protection afforded to civilian objects.
Why have special regulations? The reason for this is that certain places, certain installations and certain objects benefit from increased protection compared to the civilian property regime. In one case, we will see that this protection is rather weaker than the general protection, but generally it is a reinforced protection.
Undefended locality[edit | edit source]
First of all, there are the undefended localities. This is the current vocabulary. If you read older IHL manuals, you can see that the term "open cities" was used at the time. There are the relevant regulations for open cities in Article 25 of the 1907 Hague Regulations, and for non-defended localities, which is the same thing, simply in modern vocabulary, in Article 59 of Additional Protocol I.
What is it about? These are areas where there are high concentrations of civilians, typically cities, and that is why in the past they were called open cities. In these areas where there are civilians, there are also combatants and of course it is possible to defend the city or town against the advance of enemy forces. Defending the city means carrying out hostile acts, including from within the city walls, within the walls of this city. This exposes the city or town to counter-attacks. So there will be battles, a siege if that happens, in the past sieges were quite frequent. The result of the operations will be that large numbers of civilians will start from the facts of excessive hostilities. A whole series of civilians will die or even be wounded, during a siege they will be deprived of water and food and it is therefore possible that a belligerent will decide that he does not wish to inflict such a fate on civilians, on his own civilians in such a concentration, in an area where there is a concentration of such civilians, that he does not wish to inflict such a fate on them. The choice he has at that time is to declare that the community will not be defended. They will be either directly or through the ICRC if necessary. At that time, as a surrender of the city if you will, at that time, that community is immune to attack. The conditions are that hostile acts cease, and that mobile military equipment and military personnel are removed from the city. In a way, it is a pledge given to the opposing belligerent. On the other hand, fixed military installations can remain in the city, they remain in the city, they cannot be transported. However, they cannot be attacked in view of the statement that has been made. It's a special diet. Even some military goods that could still contribute to the war effort are treated as civil property, but they are simply neutralized by a declaration that the city surrenders. That's why it was called an open city in the past. The city is the concentration of civilians, it was the most evocative example, and "open" because it was open to enemy occupation. This is precisely a way of saying that it does not resist. We now have the term "undefended community" which is a little more encompassing, it is not just cities, it can be any community. So that's what this is about.
Neutralized areas and health zones[edit | edit source]
Then there are the twin categories, neutralized zones and health zones. The vocabulary fluctuates a little bit. The "health zones" are sometimes also called "security zones", or even worse, "demilitarized zones", which already evokes jus ad bellum, i. e. peacetime. The best, according to Professor Kolb, is to use the vocabulary "neutralized zone", "sanitary zone" which is the most common in this field.
There is a dual regime for neutralized zones on the one hand and health zones on the other in the Geneva Conventions. The two are therefore distinguished. If we look, for example, at Convention IV, we will see the distinction in Articles 14 and 15.
Neutralized areas are temporary areas located near the front line created by the ad hoc agreement of the belligerents to protect wounded and sick soldiers and civilians fleeing military operations or wounded or sick as a result of such military operations. These areas are temporary and close to the front line because it is not possible to predict exactly when there will be a battle, where it will be and where it will be necessary to establish such an area. Obviously, it must be close to the front because it is close to the front that there will be the most significant number of wounded or even sick people. This area is neutralized against the attack with some exceptions that we will see when we analyze these areas in Geneva law. The exception is that in this neutralized area military acts are performed, at which time the area loses its neutrality against the attack, otherwise it is immune to the attack.
Then there are the health zones separately. These are areas that were often already designated before the armed conflict and in which health facilities are located, including hospitals and other health care facilities. These are the areas that are not mobile, not areas that follow everything around the front and where it is like mushrooms. These are areas that are structurally dedicated to care. Often already in peacetime, for example, in Switzerland there is such a health centre in every part of the country. There are some in Moudon, where the professor completed his military service in 2014. These areas are expected to function during the armed conflict, they are immunized in the same way. These are therefore areas where the wounded and sick are then transported in a more stable manner when they can be evacuated from the front. Same legal regime, same immunity from attack as neutralized areas.
Since these two areas are not necessarily always clearly distinguished in practice because the legal regime is the same, the Additional Protocol waived the split between temporary and structural areas and merged them into one, which makes legal sense since the legal regime is identical in both cases and therefore a distinction was not justified. The lawyer does not distinguish for purely sociological reasons; one can have two zones that are sociologically different, one is temporary and the other is fixed, but the distinction from the point of view of law is only justified if there are differences in legal effects or in legal regimes. As long as there is none, there is no need to make a legal distinction, so the Protocol, in Article 60, merges them. In other words, it provides for a single legal regime.
Cultural property and places of worship[edit | edit source]
As far as cultural property and places of worship are concerned, these cultural property and places of worship benefit from a special protection regime. Under a whole series of regulations, the most important for international armed conflicts, moreover and above all, are Article 53 of Additional Protocol I on the one hand, and the 1954 Hague Convention on the Protection of the Cultural Heritage in Time of Armed Conflict on the other and even more so. This 1954 text now has two protocols, the protocol to the 1954 convention, the second protocol being protection to non-international armed conflicts and also being and refining the system of open objects through this protection.
It must be said that if we want to explain the protection of cultural objects, we would need almost a course for that. Professor Kolb being on a thesis jury in 2015, a thesis on this subject that took six hundred pages. Professor Kolb will therefore not attempt to give a detailed overview. In very broad terms, these are cultural property as stated in Article 53: "Without prejudice to the provisions of the Hague Convention of 14 May 1954 for the Protection of Cultural Property in the Event of Armed Conflict and other relevant international instruments, it is prohibited: (a) to commit any act of hostility directed against historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples; (b) to use such property in support of the military effort; (c) to make such property the object of reprisals". This is the typical jargon for protecting these objects.
Containers are also added under the 1954 Convention. So, if we have a valuable library, it is not only the books that are protected, but also the places that contain these books; which makes sense.
How are these objects determined? Who will say what is a historical object, a work of art, a place of worship that constitutes the cultural or spiritual heritage of peoples? Not every piece of art, not every historical monument, requires a validation process. This validation process is essentially carried out by the States themselves, i.e. each State declares for its territory which objects it considers to be part of that heritage. Obviously, the State authorities are not entirely alone in this, UNESCO does a very important job in drawing up lists and it is generally in cooperation with UNESCO, which has its headquarters in Paris, that these lists are drawn up by the various States. In well-organized states, such as Switzerland, this list gives rise to a small booklet and a map. In the booklet, there is a description of all the protected objects. We explain what it is about, like the Abbey of Romainmôtier, what this abbey is, its date of construction, why it is important. On the map, we will record the exact location of this abbey. In the event of armed conflict, the opposing belligerent would be given this booklet and map so that he or she would be informed of the location and nature of these objects.
It is not enough to define these objects and mark them on a map, they must also be visible in times of armed conflict, so as not to be bombarded, for example. And, therefore, there is a special emblem in the appendices of the 1954 Convention, so we can see it. It is the special emblem for protected cultural property, so these properties are provided with this emblem in times of armed conflict so that it is clearly visible, including for aerial bombardments.
The protection of these assets and variables. Here we enter into the complexities. Protection is not absolute in general, because again, if a cultural property is abused by a belligerent in order to carry out military acts, if, for example, Lussan Castle, which is certainly a cultural property, is included in the Swiss list, because it is well located to place guns and carry out acts of military resistance, protection is lost. Simply, the principle of proportionality as we have seen in 51§ 5.b is a little bit stronger. That is, the protection of this property is stronger than what would be a civil property in general. And then, in Protocol II of 1999, protection is also strengthened for particularly important properties where the opposing belligerent is in principle asked to refrain from attacking them even if they engage in acts of resistance. There is an increase in the scope of protection compared to Article 51 § 5.b of the General Regulations for Civilian Property. This is what justifies this category of cultural property.
Goods essential to the survival of the civilian population[edit | edit source]
The items essential to the survival of the civilian population are the subject of Article 54 of Additional Protocol I. Article 54 constitutes a progressive development of international law. That is, this provision was not customary law in 1977. However, according to the Eritrea-Ethiopia Arbitration Commission, this provision has meanwhile become a provision of customary law, i.e. at the time it judged in the Western Front, i.e. the western front in Eritrea and Ethiopia. In this judgment, the arbitral tribunal explained to us that in the meantime, this provision had become customary law. It was an attack on a water reservoir in the desert, so water, of course, in the desert, is a particularly scarce commodity for the survival of the population. This is quite a classic case, one could not have made a better example in a course to show the usefulness of 54.
The 54 has a whole series of difficulties. First, Article 54 prohibits the use of famine as a method of warfare: "It is prohibited to use famine against civilians as a method of warfare". Article 54 prohibits the use of famine, i.e. the deprivation of water and food, only against the civilian population. This is not a big surprise since this whole chapter of the protocol applies to the civilian population. But this means legally, on the other hand, that the practice of famine is not illegal when it is directed against combatants; combatants as long as they have not surrendered, therefore not prisoners of war, but combatants in action.
Why this distinction? No famine against civilians as a method of warfare, it is a method deep down in terror, but famine against allowed fighters; and it is allowed, there is no prohibition on using this method against fighters. What is the systematic reason for this choice? Is this a gap in the protocol? Has anything been mislegislated or forgotten? Was unnecessary brutality allowed towards combatants incompatible with the humanitarian idea? Is this justified and if so, why is it justified from a system perspective? The fighters have the choice to surrender and from the moment they surrender, they become prisoners of war and at that moment, under Convention III, they can no longer be starved. As a method of war, to facilitate surrender, it is permissible to cut off supplies because they always have a choice themselves, it is in their own power to break it by surrender. Civilians do not have to surrender because they do not engage in acts of hostility, in any case, if they do not participate directly in hostilities, if they participate directly in hostilities, they are treated as combatants in this regard.
The second paragraph states that "It is prohibited to attack, destroy, remove or render inoperable property indispensable to the survival of the civilian population, such as food and the agricultural areas that produce it, crops, livestock, drinking water installations and supplies and irrigation works, with a view to depriving the civilian population or the adverse Party, for their subsistence value, of it, for any reason whatsoever, whether to starve civilians, cause them to move or for any other reason". The aim is to deprive the civilian population and use this as a method of warfare. This is an indirect famine method. We do not cut off supply directly, but we destroy the goods that supply us. The difficulty here is that this prohibition is not absolute, there are exceptions in paragraph 3:" 3. The prohibitions in paragraph 2 shall not apply if the listed items are used by an adverse Party: (a) for the subsistence of members of its armed forces only; (b) for purposes other than such supply, but as a direct support for military action, provided, however, that in no case shall they engage in actions against such items that could be expected to leave the civilian population with so little food or water that it would be reduced to starvation or forced to move". It shows that the prohibition of attack is not absolute here.
What are the most important difficulties in practice in this area? First of all, it is to judge whether this attack, and therefore the goods it targets, are intended for civilians, because if they are not intended for civilians, but for military forces, then we can attack these goods. Since livestock, supplies and water are almost never exclusively reserved for military forces, but always have a civilian fraction as well, in practice we slip into obvious objects that serve one another and serve the other. At that point, we enter into somewhat complicated assessments of excessive collateral damage in civil law. We could attack the fraction used by the military, but we could not attack the fraction used by civilians. But the belligerent never knows exactly what fraction it serves for whom and therefore it is a little bit difficult to implement, i.e. again things have to be weighed against the information, but rely on the good faith of the commander. And then, it is a question of ensuring that the civilian population can have what is necessary for their subsistence based on their subsistence value, says paragraph 2, "in order to deprive the civilian population of it because of their subsistence value". Here again, we enter into subjective assessments because how will we assess what is the subsistence of the civilian population and what is surplus? Subsistence is what is necessary to survive, but what is necessary to survive everyone is very different. If you weigh forty kilos, have a small stomach and do not do much, you need a certain amount of food, if you do hard work, if you are two metres zero four, you need more, if you are a pregnant woman, you need more than if you are a young woman not pregnant, etc. It is obviously totally excluded that the belligerent could start to enter into calculations of this kind, as it will not be exactly what the numbers of the civilian population are, i. e. how many people exactly, and this therefore leads us to bare difficulty in practical implementation. We can see the main principle: civilians must not be starved so that their health suffers or even dies outright. But, beyond this very sound and general principle, the detailed implementation, especially of paragraph 2, is problematic and that is why we do not hear so much about it in international armed conflicts, especially since the armed forces, if we take the Americans or others for example, have everything in their heads except starving the civilian population and the newspapers still say that civilians are starving to death because Americans are destroying water tanks and food crops - you can't imagine anyone being that crazy. So, fortunately, in a way, it is not that practical, but if it were to be implemented, we would still have some difficulties in paragraph 2.
This is often true in law; when you see the regulation and the principles, you very often have to ask yourself how you can implement things in practice because the principles may seem very sound, but implementation can become complicated when you look a little closer. This is the main problem with popular initiatives in Switzerland. We can vote on wonderful ideas, but until we vote on a concrete implementation, we buy the cat in the bag, that is, we do not know what we are voting on. That's the big problem. We will have to find a way at some point to limit a little bit the crazy people who have good ideas, which they even manage to get through very well, but then we wake up and we don't know how to implement them very well. We must vote on the idea and on its implementation, according to Professor Kolb. This is another problem, you have to look at what is practically possible every time, sometimes good ideas are not easy to implement. Professor Kolb is not arguing against Article 54.
The natural environment[edit | edit source]
This is a largely missed regulation. The natural environment could not be considered as an object of protection until the 1970s because there was no particular consciousness as yet, for example, in 1949, due to the fact that the law of The Hague was not codified. In addition, the natural environment is a medium in reality, a dimension, the natural environment is everywhere, it is the earth at the bottom. That specific regulation is needed here, as it is difficult to conceive of the environment as a civil object in the classical sense may seem obvious.
Nevertheless, this regulation in the Protocol as well as in the 1976 Convention, which is still referred to in its English acronym ENMOD for Environmental Modification Convention. This is a regime very similar to that of the Additional Protocol in Article 55. These two texts are very disappointing.
Why did we have environmental regulations? It was the Vietnam syndrome that brought him to us and the action of the United Nations General Assembly during the Vietnam conflict. The American defoliants launched on the ground cover in Vietnam, the famous agent orange which is a toxin in reality much like the Seveso toxin which is a factory in India that caused havoc when toxin escaped in the 1970s. It is a highly toxic substance that has been dumped on the vegetation cover, the virgin forests of Vietnam. The reason was that the Americans wanted to find the warrior fighters who were seeking refuge in the jungle and in the wooded areas.
By using defoliants, the leaves of the weapons fall, better visibility is ensured and enemy fighters are deprived of shelter since they can no longer hide easily in this plant mass that becomes transparent, as we do in Switzerland in winter. The price to pay, of course, is that these toxins have completely contaminated the soil, have damaged the natural environment and not only, if we link newspapers or consult the Internet a little bit, we will probably have already seen the images of very important malformations that very important children are born with this poison. There has been talk, apart from problems with limbs, of children being born without a face, it is simply white skin without eyes, without nose, without mouth, so it is to say if it is a major malformation.
The question was on the agenda at the time and we came up with these provisions. But the provisions are very disappointing because the States did not want to make a strong commitment. Bombardments always take place somewhere in the natural environment and war, of course, devastates not only men and today we must add women, lexically says Professor Kolb, but also ravages the environment. That is why we have minimalist regulations. Article 55§1 stipulates that "the war shall be conducted in such a way as to protect the natural environment from widespread, lasting and serious damage". That's the key sentence.
We do not have that the war will be waged by ensuring that the natural environment is protected from damage, by ensuring that it is preserved, this does not ultimately commit too much, by doing everything possible to do so. We have not stopped there, we have gone even further in the restriction, because we must not only ensure that we cause a certain type of damage, a certain type of damage, which is widespread, lasting and serious damage. Not" or "serious, but" and "serious. This means damage that endangers the survival of the civilian population because it is of a sustainable nature, that is, over several seasons, or several years. It must be proven that the damage would be such that the civilian population would not be able to survive properly in this area for several years, and therefore that their health or their life would be in danger. Frankly, according to Professor Kolb, this is a lot, apart from the fact that there are scientific uncertainties, uranium useful in the Yugoslav wars, water contamination, uranium, radioactivity, whether it causes damage to the water table enough for example, and it is practically impossible to prove it, moreover, that the threshold would be so high as it is in the 55.
It should also be noted that only the civilian population is protected by article 55 if they look closely at it. The title is misleading when we say protection of the natural environment, it is not really that, it is not really the natural environment that is the object of protection. Because, care must be taken to protect the environment when such damage thereby compromises the health or survival of the population, as stated at the end of the first paragraph. Moreover, Article 55 is found in the section of the protocol entitled "Civil population", i. e. Title IV. So, in a very basic systematic interpretation, we understand what the purpose of protection is. The environment, only because it serves us for our survival. That is to say, article 55 is quite anthropocentric, that is, we are at the centre, everything else serves us is because it serves us it must be protected at times, but there is no perception at all in article 55 that the natural environment could have any value in itself and deserve protection as such.
It must be added again and finally that such limited damage, against which the protocol promises quite illusory protection, is expected damage: "the prohibition of the use of methods or means of warfare designed to cause or which can be expected to cause such damage to the natural environment". So, once again, there is this terminology of the hypothesis tempered somewhat by the word "this protection included", but in the interpretation of the provision, in a whole series of authors, this expectation contaminates the entire provision, so we tend to interpret it as meaning that it is only the damage that we expect they could have such effects. This is obviously the perspective at the time of the attack, but it contributes to making protection even weaker, because we can always speculate on what we expect, especially in an area as uncertain as the natural environment, that nature's capacity for regeneration is and so on.
What we have just seen, i.e. the multiple limits of this provision, which is a trompe œil rather than a true provision, i.e., with the 55 we can only rule out the most macroscopic damage. This weakness has long been known and is well known to the ICRC. In recent years, the ICRC had focused on four topics on the IHL reform programme. One of these subjects, the other was detention, another was the implementation of IHL, one of these subjects was the protection of the natural environment, because it is true that now there is room to do a little more, we are no longer in 1977, there is already a diverse consciousness. We will have seen that the States at the Red Cross conference that the States refused to enter into the matter and that we are therefore leaving it at that point. It should be noted, however, that the United Nations International Law Commission has put the matter under review, so we will see what happens next.
Structures and installations containing dangerous forces[edit | edit source]
The last object is a facility specially protected against the attack of structures and installations containing dangerous forces in Article 56 of Additional Protocol I. These facilities have a special emblem that are supposed to signal danger.
These are the installations mentioned, structures or installations containing dangerous forces, such as dams, dikes, nuclear power plants. These are the three facilities protected by section 56. The provision is exhaustive on this point. It did not protect installations containing dangerous forces in general, it protected three of these specifically listed installations against attack. Therefore, other facilities that may contain forces that are just as dangerous as those at chemical manufacturing sites are not protected under section 56.
Frankly, this is not a gap, because the legislator did not want to go any further than to codify these three specific protections, as the word "namely", which is not "notably", also indicates very well. Of course, we do not lose too much on the exchange because there is still general protection. If we take a chemical agent production plant that does not fall under Article 56, we will therefore have to argue with the general regime. As long as it is a civilian power plant, it is a civilian place that cannot be attacked and therefore cannot be protected by the general regime of civilian property against attack. If this plant also serves the military, makes a military contribution, if it becomes a military objective, it remains the rule of 51§ 5.b and in this case, the damage is likely to be so extensive that the disproportion will be easily established. So the loss is not huge. But all the same, Article 56 provides for a slightly stronger protection, and for chemical power plants, this slightly stronger protection is not guaranteed, you have to go through the general regime, it is not really very happy.
There is therefore immunity from attack by these dangerous installations as mentioned in Article 56. Immunity in principle from attack even if they are military objectives, i.e. even if these installations make a military contribution and even if there would be a military advantage to attack them.
Immunity from attack is not absolute, however. We see the exceptions that are implicit in the first paragraph and then clarified for some of them in paragraph two of Article 56. What are these exceptions?
First of all, an attack against such an installation, therefore one of the three protected, is not prohibited if it is done in such a way that dangerous forces are not released. This is in contrast to the first paragraph, which states that these works and installations will not be attacked even if they constitute military objectives, thus strengthening the protection regime in relation to the general regime, when such attacks may cause the release of these forces and consequently cause severe losses among the civilian population. This means, on the other hand, that when you attack in such a way that forces are not released, you can attack. For example, one could attack a nuclear power plant that is not in operation at that time or attack those parts of the nuclear power plant that are not likely to release dangerous forces, although one could enter the spheres of the sorcerer's apprentice in this area if necessary. But, it is not prohibited by the protocol, it should be noted. The Americans attacked nuclear facilities in Iraq in 1991, but apparently no dangerous forces escaped. So, probably, they were sufficiently well informed about what they were doing.
The second exception is that of paragraph 2, i.e., if these objects protected by article 56 are used for military purposes, therefore, are a significant support is direct support of a military operation, and if attacks are the only practical way to stop such support, such attacks are not prohibited, i.e. immunity is lost in this case. We can therefore attack even a nuclear power plant or even a dike if there is significant support for military operations, which is the only way to stop them. We see that, all the same, this regime is higher, the bar has been set higher, it is not enough to make a military contribution and have an advantage, it requires regular and significant support and direct military operation. The bar is higher.
The third paragraph then reminds us, but this would go without saying, that in all these cases, so even if we attack, even if immunity from attack is lost, in all cases, the civilian population and civilians continue to benefit from all the protections conferred on them by international law, including protective measures, etc. This means that the general rules remain applicable and in particular also the rule on collateral damage remains applicable so that it is difficult to imagine cases where to attack a nuclear power plant if it risks exploding and thus unleashing nuclear potential, probably even much more so than in Fukushima, it is difficult to see to what extent the belligerent's military advantage could justify such results on the civilian population from the point of view of the proportionality equation.
It should be noted that the systems are very strict for the attack on these structures and installations, but that it is not absolute here either, in IHL, there are loopholes, it is possible in certain circumstances to attack these objects simply, probably, it is difficult to justify it, especially if dangerous forces are released, so in this case, it will be very difficult to justify collateral damage in IHL and that is why this does not happen, the belligerents are careful not to open the pandora's box.
That is the case for these localities, installations and objects enjoying a special, sometimes higher, regime of protection, as can be seen here with installations containing dangerous forces. Sometimes, however, the natural environment is not really a civil object, it is rather a dimension in which we live, but protection is rather weak. So, at the limit, there would be stronger protection of the natural environment if it were a civilian object, but it cannot be because it is what surrounds us all and it is where the war takes place. If we neutralize the entire natural environment, we will have to say that nothing can be bombarded because everywhere there is an impact on the environment.
Prohibited weapons[edit | edit source]
Weapons are obviously a classic area of Hague law. It is not a question of telling the belligerents what to use as a weapon. They use the weapons that suit them and equipment. The purpose of IHL is to say that certain weapons should not be used because of their excessive destructive effects. The material is mainly placed in the area of prohibition of specific weapons.
However, we also have some general principles in this area, which are also in line with a prohibition logic, but which are general, applying to all weapons, including new weapons. In addition to these few general principles, we have a series of conventions or provisions contained in texts that prohibit specific weapons, poison weapons, chemical weapons, incendiary weapons, etc.
So, with regard to weapons, we have a very specific prohibition approach here, the logic is the prohibition much more than in Geneva law. Here, we are really at the top, on the Everest of prohibitionism. Secondly, there is a kind of bipartition, two or three general principles applicable to all weapons, and then specific prohibitions on specific weapons are contained in conventions. Professor Kolb specifies that he says "two" or "three" because for two, there is no doubt that they are established in positive law, the third is a question of argumentation. The Anglo-Saxons often take a more restrictive view and sometimes deny the existence of this principle, while the mainlanders consider it established. So Professor Kolb says "two" or "three" because the status of the third is not so obvious.
Before entering into the analysis of positive law, i.e. before presenting the most important principles and then the most important treaty standards, there are two preliminary remarks. The first is that the law of conventional weapons, i. e. outside the principles, suffers from a kind of eternal delay. Because weapons are first developed and then used on the battlefield. At that time, they are found to be excessively destructive and later prohibited because a conventional process takes years, especially when they are no longer of great military use. A weapon that has a lot of military use, we will never be able to ban it by a convention because the states that find it useful will never sign a treaty to say they will no longer use it, Professor Kolb points out that they are not that stupid at this point. This means that conventional prohibitions tend to come after the fact and when a weapon loses its military utility, we can agree to ban it.
There are the principles that fill the gap here, but these principles are not always so obviously to be implemented because there is a margin of argument if a weapon is prohibited under the principles while conventional prohibitions are good because they are precise, they define exactly the weapon to which they apply, and ban it, so there is not much room for argument and subtleties.
When we say that it is weapons that no longer have any military use that are eventually banned, is that not too restrictive? There may be a convention on cluster munitions in 2008, there may be Ottawa-Oslo in 1997 on anti-personnel mines; the main problem is to know who will be a party to these conventions. There will be Switzerland, Norway and in particular not Switzerland, which does not use cluster munitions, it does not bomb, etc., Switzerland does not use anti-personnel mines, so it is easy to ratify such a convention. On the other hand, the States that use them and the States that also produce them and have everything to gain from their production do not ratify these conventions and are therefore not bound by them. If we take the convention on anti-personnel weapons, which was also the result of civil society initiatives. Finally, weapons are not really effectively banned when they lose their military utility. This is evident with chemical and biological weapons. At one point, we managed to ban them, but it was because geopolitics had changed that we were able to put a stop to them. Nuclear weapons are the opposite example, and they continue to be used for deterrence, and therefore there is no treaty that prohibits nuclear weapons in their use or storage. There is the 1968 Non-Proliferation Convention, but that is something else. It is not a ban on nuclear weapons, but it is simply to ensure that those who possess them keep them, but others do not obtain them so that they do not proliferate. It is a peace law treaty, by the way.
The second introductory remark was that arms law is regrettably "infested" by rather significant differences of opinion between us as continental people and the Anglo-Saxons. Let us say in very simple terms that continental Europeans are much more restrictive on weapons while the Anglo-Saxons are more cheerful. It is also probably because the most important Anglo-Saxon state, the United States of America, has never bombarded its territory, but often bombards others because it leads to a slightly more unilateral view of things. We like weapons that allow us to do things if we are not reciprocated by the effect even on our own territory. It's always the same principle. As long as it's the others, then we can go more lightly. If you were the victim of bombing on your own territory, you might think about it more in terms of reciprocity. There is a beautiful Greek saying that you can kick someone else's ass a hundred times, and it will always be little. Of course, as long as it's someone else's ass.... You have to know that there are these differences and that Professor Kolb doesn't want to hide.
Principles applicable under customary law[edit | edit source]
The positive law as it stands today, namely the principles applicable under customary law, sometimes also under texts, and we will move towards concrete treaty provisions.
The first principle and its status are not obvious, is the one that prohibits weapons that make death inevitable. The second principle, and it is not debatable, is the prohibition of weapons that cause superfluous or unnecessary harm. Finally, the last principle: indiscriminate weapons are also prohibited. This is a very well-established principle, and it flows very directly from the principle of distinction that we have already discussed.
Weapons making death inevitable[edit | edit source]
This is a principle of customary law, which is not codified in Additional Protocol I, but is very well expressed in the 1868 St Petersburg Declaration, which has not been repealed until now, in the preamble to that Convention. This 1868 St Petersburg Convention on certain projectiles in time of war contains a preamble that is more important in substance than the prohibition it contains. This preamble reads as follows: "the only legitimate aim that States must pursue during war is the weakening of the enemy's military forces, that to this end it is sufficient to take as many men out of action as possible, that this aim would be surpassed by the use of weapons that would unnecessarily aggravate human suffering or would require their inevitable death".
It is therefore ultimately a problem of necessity and proportionality. Since the purpose of war is not to destroy or, as far as human beings are concerned, to kill as many adversaries as possible, but to break their resistance, and since the resistance is broken both by injuring and by killing, it would therefore be excessive in relation to this purpose of war, which is the only one allowed in IHL, in relation to this purpose, and therefore not necessary and disproportionate to use weapons that leave no chance of survival. This is purely a matter of proportionality.
The principle needs to be well understood, because it is easily misunderstood. It is clear that this principle is not intended to prohibit a belligerent from making proper use of weapons. Weapons in times of armed conflict can be lethal; when you shoot someone, it is not necessarily to hurt them because you can kill them and sometimes you aim to kill them outright. In the Swiss army, you learn double-drawing. What is prohibited is to use a weapon that does not, in principle, leave any chance of survival. So it's a matter of fate. Even with very powerful deflagrations, bombs, artillery, we can use all this, it remains a matter of luck sometimes to survive even miraculously. But, using weapons that leave no chance, such as vacuum weapons that suck oxygen and suffocate any living being within a certain radius depending on their power, such a weapon would be considered excessive. Even if it is used against combatants, because if it were used against civilians, we are in the field of prohibition, but even against combatants, by not giving them any chance of survival, for example by sucking in oxygen, this is considered an excessive means that is not necessary, not proportionate to the purpose.
So you can use a weapon well, that is, in a way that kills, but you cannot use a weapon that by its very nature leaves no chance of survival.
The question of whether this is still a principle that applies today is a little controversial because, precisely in the Anglo-Saxon world, there are challenges, challenges that would like this principle not to be customary law and it is true that it has not been included as such in the supplementary protocol.
Professor Kolb mentions it nevertheless, because if we do not want to accept it as such, it remains in any case behind the principles of necessity and proportionality, which are also applicable in the law of armed conflict. Proportionality this time not within the meaning of Article 51 § 5.b, not the civil equation and military advantage, but proportionality in the sense that we must not go beyond what the purpose of war requires.
Weapons causing unnecessary suffering[edit | edit source]
With this principle, we are in the indisputable, it is indisputable positive law: weapons that cause superfluous or unnecessary harm. The origin of the principle is once again the preamble to the 1868 St Petersburg Declaration, but then the principle was taken up again in Article 32.e of the Hague Regulation, and in the meantime also in Additional Protocol I to Article 35 § 2.
In 35§ 2: "It is prohibited to use weapons, projectiles and materials as well as methods of warfare likely to cause superfluous injury". Therefore, the basis of positive law is indisputable here and the principle is an autonomous principle, it is applicable as such, as confirmed by the International Court of Justice in the 1996 nuclear weapons case in paragraph 78 of the Court's advisory opinion to the General Assembly, not that of WHO. There are two advisory opinions in 1996 on the same subject, WHO on the one hand and the General Assembly on the other; the Court has only replied in substance to the General Assembly and it is therefore to this opinion that Professor Kolb refers.
The principle of superfluous ills also needs to be well understood. It is not, of course, as sometimes journalists believe that it is a contradiction in terms because all evils are superfluous, since war itself is superfluous, so we do not even have such philosophical authors. The question of superfluous ills is once again, from a legal point of view, a question of necessity and proportionality.
The principle is that the belligerent should not do more harm, i.e. inflict more suffering on enemy combatants than is necessary for the intended purpose. The aim being to put out of combat, it will therefore be necessary to the extent that we have the choice of means, to use the means that allows us to achieve this goal, the putting out of combat, with less suffering compared to the means that allows us to achieve the same goal, but with more suffering. Why? Why? Because the belligerent who attacks, the result is the same in both cases, so he has nothing to gain by using one ball against the other, he gets the same result as long as the opposing combatant is hit, he gets the knockout, but from the combatant's point of view, to use projectiles or bullets that, by simply talking, hurt him much more than others would be to cause superfluous harm in relation to the goal, superfluous because it does not bring anything more in relation to being put out of action and is therefore unnecessary cruelty.
What this means in practice; a normal, round bullet, moreover, when it touches the body, it enters it and very often it comes out from behind. It obviously causes suffering if you are affected, you are not in the sun at the Mediterranean club, we agree. Now compared to bullets that flatten when they touch the human body and sometimes flatten very strongly, this was the case for all so-called dum-dum bullets after a locality in India where they were manufactured at the end of the 19th century. These balls have the characteristic that when they hit an object, they flatten, i.e. the kinetic energy is slowed down by the fact that by flattening, they make a much larger wound; they lose a lot more speed because they flatten while the normal ball does not flatten so it crosses. It opens up huge wounds. If you don't die instantly, you suffer a lot and it's incurable, that is, you can never completely heal wounds like that. This is where the principle applies: he commands to use a normal ball in this case and to renounce dum-dum balls. At the time of the League of Nations, photographs of the Abyssinian War with Italy in 1935 were published; in the official journal of the League of Nations in 1936, appalling photographs were found.
The main thrust of this principle is to ensure that no more harm is inflicted on persons struck by weapons than is necessary to achieve the belligerent's objective. The simplest example in this regard is to deal with certain projectiles that cause extremely painful injuries years adding to the benefit for the belligerent since the person struck by the projectile is put out of action by both the more painful projectile and the less painful projectile.
We must look at this principle from a slightly different perspective. Indeed, it may happen that the use of a certain type of projectile, which is constantly causing more damage, is justified by a greater military advantage. Thus, projectiles that flatten when they hit the target may in some cases be useful projectiles. We also use them outside armed conflicts in domestic law to curb insurgent or other violence or in police operations. The advantage of flattening projectiles is that they do not ricochet and therefore there is much less risk of inadvertently striking people who were not intended to be targeted.
In some military operations, consider for example raking in northern Mali in a semi-mountainous region and in any case stony, firing with traditional bullets is like exposing yourself to a fire that can come from all sides because of multiple ricochets. The use of flattening effect balls not as massive as dam-dam balls, but a slight flattening effect means that this effect can be avoided.
It is constant that these projectiles cause additional harm if they hit someone, but there is a military advantage on the other side that needs to be put into the equation. In this type of situation, the principle of superfluous evils becomes less certain in its application, because it does not prohibit a belligerent from using means of warfare, weapons in this case or projectiles that cause more or less harm, it asks him to use or rather refrain from using these means when the evils he provides are superfluous. When there is a tangible military advantage, evil is no longer necessarily superfluous and it is a question of balancing evil on the one hand and military advantage on the other. This, of course, makes the use of this type of means, in these contexts, less certainly prohibited than in the context discussed above.
That is why the principle is indicative, it is useful in some circumstances, it indicates what to do in others, but it cannot replace specific prohibitions contained in conventions. If we say that certain conventions in all circumstances prohibit the use of chemical weapons, we are creating greater legal certainty than the principle of superfluous evils.
Weapons with indiscriminate effect[edit | edit source]
This principle is also well established, which is the one that prohibits the use of weapons with indiscriminate effects. This prohibition is a direct consequence of the principle of distinction. It is found in Articles 54 § 4§5 and in particular §5 of Additional Protocol I. The indiscriminate effect that weapons can have can be manifested in two ways.
First, they are weapons that cannot be directed by nature with certainty at military objectives. These include weapons of mass destruction. If we use gases, biological weapons, chemical weapons and sometimes firearms, we cannot contain their effect solely for military purposes because these weapons have an ubiquitous effect, that is, a generalized effect; the bacterium, for example, will not stop at the military objective, but it will spread more or less uncontrolled and such weapons would be indiscriminate because they would not stop their effects at the military objective you want to strike, but by definition would also extend to the civilian world you are not allowed to strike. A nuclear weapon obviously also ideally falls into the same category, especially since nuclear weapons today are much more powerful than the "diaper" nuclear weapons that the Americans used in Japan in August 1945 in Hiroshima and Nagasaki.
The second way in which a weapon can be used to have an indiscriminate effect and that the weapon itself is by its technical capabilities perfectly capable of being directed against a military objective and only against a military objective, but that the actual use made of it by a belligerent is not so limited. There are, for example, missiles, these missiles can be launched on a military objective and at that moment it is a weapon that is used in a discriminated and therefore legal way. But it is also possible to launch these missiles indiscriminately, perhaps for reasons of terror, so that a military objective, perhaps civilians, may be struck, and that use is prohibited.
It should be noted that neither in one case nor in the other of the two categories presented, weapons which by their nature cannot be used against a specific military objective, nor weapons which by their nature can be used against a specific military objective, but are not in a specific case or in either case, the weapon is not automatically prohibited as such. It will always be its use that will be prohibited in IHL. There is no prohibition under international law on possessing nuclear weapons, for example, except for States that have signed specific treaties, including those committed by the 1968 Nuclear Non-Proliferation Treaty. But there is no general prohibition on possessing such weapons, nor were there any in the past with regard to chemical weapons, for example. Each time, we need specific treaties that also prohibit possession. IHL does not do so; if there are treaties that also extend to peace law and already provide that the possession of these weapons is prohibited, then the conventional regime applies. But under general international law, there is no prohibition in principle on possession.
Conventional prohibitions[edit | edit source]
There are a whole host of conventions or provisions contained in conventions whose purpose is to prohibit either the possession and use of a weapon in general or to restrict its application. These prohibitions are primarily conventional law, and it will be necessary for each of them to determine to what extent the injunctions it contains are also part of customary law. The principles presented by Professor Kolb are undoubtedly part of customary law. The specific prohibitions in question are not automatically part of customary law, but must be determined on a case-by-case basis using the usual tools applicable to the matter. In the specific prohibitions, we will take only a few as examples. If we are curious, and Professor Kolb points out that it is not prohibited to be curious, we can take the Chindler and TOMAN and go to the "weapon" section in which the texts are presented chronologically or otherwise on the ICRC website which also provides a list of these conventions and it is possible to take a quick look at them.
The first example is old, but it should be mentioned, concerning dum-dum projectiles. They are therefore projectiles that flatten when they hit the target, especially the human body, and they flatten a lot, i.e. all their energy of movement is transformed into injury on the spot. This type of projectile was used on a certain scale in 1899 in the Boer War in South Africa, the British were involved, as they often were at the time anyway and also today, actually. The ban was adopted at about the same time as the effects of the bullets were being used and can be found in the 1899 Hague Declaration IV. It is therefore not Convention IV of 1977, but Declaration IV of 1899. By the time Italy used these weapons in Ethiopia, they had already been banned, but the truth is, as is often the case, things were banned between civilized states, but when it came to savages, we went there happily. It should not be forgotten that Italy, and public opinion at the time, considered Ethiopians to be little more than animals. Therefore, let us go there even with prohibited weapons, it is unfortunate, but that is how it is, it is better to see things as they are rather than to give us the satisfaction of having always been the good ones here in the West. There is also the principle of superfluous evils to argue against dum-dum.
Then there are cluster munitions, which are projectiles with flashes that cannot be located by X-ray. So there are, in simpler terms, some projectiles that when they hit the human body or some other objective, do not flatten, but fragment into, sometimes, billions of tiny fragments. These fragments are sometimes so small that they cannot be located by X-ray and therefore also cannot be extracted. This means that if you are dead, that is all the better, if you have not died as a result of the impact, you must live a more or less long period, potentially long also with constant pain, because obviously, if you are hit in the rib cage or a little lower, you have all these fragments in the organs and the pain does not pass. This is the reason why, therefore, excessive pain, superfluous ailments, these weapons are prohibited.
Here we no longer balance. Even if there were a military advantage to using these weapons, this no longer applies because it is not the general principle that is directly applicable, but the prohibition, which does not have an exception, and this prohibition is contained in the first protocol to the 1980 Convention, i.e. the one on certain conventional weapons.
There is the prohibition of blinding laser weapons in Protocol IV of 1995 to the same 1980 Convention on Certain Conventional Weapons. The meaning of the term "classic" is not that of a traditional weapon as one might perhaps think, it is in contrast to weapons of mass destruction that this convention does not address. It is precisely because there was no agreement on weapons of mass destruction and in particular nuclear weapons that this issue was put in brackets in the 1977 protocol, that no weapons could be addressed in the protocol and that the issue was taken up again in 1980, but only in the field where progress was possible and imaginable, namely conventional weapons and not weapons of mass destruction.
Only laser weapons that provide blindness, whether temporary or permanent, are prohibited. But blindness is not prohibited, that is, lasers can be used to blind pilots without attacking their retinas, in other words, by simply ensuring that they can no longer see military targets to bomb them. Also, the protocol only applies to people who do not use vision improvement techniques, such as binoculars or other instruments that allow them to see more than glasses, obviously only allowing them to see normally, that is, to correct a deficit. Anyone who uses instruments to improve vision would not be covered by the protocol's ban on laser weapons and therefore could even be attacked by a laser weapon with blindness effects. In principle, permanent blindness is covered by this protocol, but also temporary because sometimes there are possibilities to treat in the future and it is very difficult to make a distinction between the two categories as long as the inner parts of the eye have been attacked.
Why is this ban interesting? It is only because the ICRC obtained this prohibition in this protocol against a weapon that had never been used on the battlefield. It had been evolving in the 1980s, the ICRC took the lead and the ban came before the weapon was used in a practical way. According to Professor Kolb, and he is pretty sure of it, this is the only example in which a weapon will have been banned before it has been tested in the field; in all other cases, we start by developing a weapon, we find it beautiful, it brings something, we use it, we see that it produces disastrous effects and then at some point we manage to ban it as best as we can. The only exception is laser weapons.
Chemical, biological and bacteriological weapons; there is a whole series of texts here because chemical and bacteriological weapons were formerly called poisoned weapons, this is a very old prohibition of the law of war. Professor Kolb will only mention the most important texts for this course, namely the Geneva Protocol on Noxious and Asphyxiating Asphyxiating Gases of 1925, and then, with regard to chemical weapons specifically, there is the Paris Convention against Chemical Weapons of 1993, which has been widely discussed following the Syrian events. As far as biological or bacteriological weapons are concerned, there is the 1972 Biological Weapons Convention.
Some comments on these conventions, in particular the 1993 Paris Convention and the 1972 Convention also adopted in Paris. The first remark is that the conventions are specific in that they do not fall under the law of armed conflict either; neither the 1993 nor the 1972 Convention. These are conventions of the law of peace and each time they specify in their first article that they prohibit the manufacture, stockpiling or use of the weapons concerned and that they do so in all circumstances. This is therefore the scope of application of the Convention in its Article 1 § 1 for both Conventions. This means that we go beyond the law of armed conflict, which is concerned only with the use of weapons during the armed conflict. Here, we are already in the law of peace in an obligation of disarmament. It is therefore a question of dealing with disarmament, but these disarmament treaties also have an effect in the law of armed conflict because the use is prohibited in all circumstances, therefore including in times of armed conflict and especially in times of armed conflict, because weapons are nevertheless used by States primarily in armed conflicts or elsewhere and, in addition, any circumstance also means in any type of armed conflict and, moreover, also in peacetime if it were possible to imagine cases where chemical weapons could be used outside armed conflict, which is possible in times of insurrection or internal unrest and therefore police action.
The 1925 Geneva Protocol, on the other hand, was a Convention on the Law of Armed Conflict. It did not extend in peacetime, it did not concern the manufacture and possession of certain weapons that it allowed, it only prohibited their use. So we took a further step in 1972 and then in 1993 with a complete ban, so it is fair to say that there are, as we often say in English, a ban on chemincal and biolgoical weapons. Perhaps we could try to ask why on earth in 1925 the use of chemical weapons called gases was banned at the time, why was it banned, but we did not ban the manufacture of these weapons because it may of course seem relatively bizarre to tell someone that they do not have the right to use something, but that they can produce it and do it; because if they cannot use it, why allow it to be manufactured and possessed? But here, of course, it is once again only an abstract and uninformed thought that could argue like that, because what was the reason why it was entirely consistent to allow the manufacture and possession, and therefore the storage, of these weapons while prohibiting their use.
Because obviously, the ban is very good, but we cannot think that all states will always respect it. And therefore, if one is attacked by such weapons, it would still be relatively unfortunate if one had no right of reply, even because the right of reply is the main reason for the other to already use his chemical weapons. Why Italy used its chemical weapons in Ethiopia apart from civilization issues: simply because the Ethiopians did not have chemical weapons, they did not have an air force to hit Italy either. We can be sure that if they had had chemical weapons and could have brought gases into Italian territory, Mussolini would have thought as Hitler also thought about using them against England, but he did not do so independently of the reasons for civilization, for that matter. So that's the reason; we took a further step afterwards because, in the meantime, the main weapon for deterrence is nuclear weapons and they are no longer chemical weapons and biological weapons, so they have lost their military importance and we have been able to gradually put them aside.
Gradually because nuclear weapons have developed, there have been two classes of weapons of mass destruction: nuclear weapons for the rich to speak simply in the first world and biological and chemical weapons for everyone, but finally for the poor above all because they are easier to produce, store and cost less, you do not need extraordinary technology to control this type of weapon.
It was possible, but laboriously to ban these weapons, first of all biological and bacteriological weapons for the simple reason that with the trigger already after Stalin, i. e. with the arrival of Krutchov and the first trigger, it was relatively quickly possible to ban biological weapons because they are more complicated to handle than chemical weapons. As long as we have chemical weapons, we frankly do not need to get lost in the meanders of biological weapons again. It has been more difficult to ban chemical weapons. We can see that another 20 years have passed since then and a whole series of political events such as the second major détente, the fall of the walls, the use of gas on the Kurds by Saddam Hussein, a whole series of factors that have considerably increased the pressure. One thing that can still be noted and noted, according to Professor Kolb, is that the great sacrifice in this regard has been made by third world states because they have renounced their weapons of mass destruction, while the first world states have obviously not renounced their weapons of mass destruction, namely nuclear weapons. This is one of the reasons why third world states are very angry with us in the area of disarmament because there is an article 6 in the Convention on the Non-Proliferation of Nuclear Weapons that is a give and take: small arms are acquired by nuclear weapons, but in return, as stated in the Convention in article 6, the first world states negotiate nuclear disarmament constructively and in good faith. The Third World States think they have been a little bit foolish, they have given up, but the others are negotiating forever, but of course they are never moving forward. That being said, in a very uncertain world, it is difficult to get rid of the repair, including nuclear.
The distinction between chemical and biological, which also includes bacteria and therefore bacteriological warfare; the definition of these terms, particularly what a chemical substance is, is beyond Professor Kolb's competence. This is very complicated, it is initially found in the very first provisions of Article 2 of the Chemical Weapons Convention. It's very complicated, there are a whole series of technical terms and several paragraphs. The fundamental distinction is that between living substances and dead or inert substances. Living substances relating to biology and non-living inert substances relating to chemistry. There is always a metabolism in living organisms.
Incendiary weapons are targeted and restricted in the use, not prohibited, in Protocol III to the 1980 Convention on Conventional Weapons. Incendiary weapons are therefore weapons that operate by fire, they simply fire the objective. The problem with fire is that it spreads in an unexpected and uncontrollable way. These are uncontrollable things that fire. This therefore poses a problem of collateral damage and is therefore excessive. History attests to this because firearms have not rarely been used, however, since the Anglo-Saxons have a fine tradition of using firearms. There is a lot of talk about the nuclear fire in the two Japanese cities, but we forget to talk about Tokyo. In Tokyo phosphorus platelets were used as well as in Dresden. The destruction of this city, which was almost as massive as the cities attacked by nuclear fire, is due to traditional fire, fire in the direct sense of the word. Following the Vietnam War, people were again moved by it and the fruit is therefore this protocol which contains limitations when the fire is likely to cause excessive collateral damage and this excessive collateral damage is described in a little more detail than the general law of the 1977 Additional Protocol.
What are the basic rules? First of all, an aerial bombardment, the Convention distinguishes between an attack by air and an attack by ground, an aerial bombardment of a military objective located inside an area of civilian concentration is prohibited. This is prohibited in all circumstances according to the text, nothing is weighed up. The distinction between air and ground is that air strikes a certain height and therefore the risk of fire spreading is considerably increased, and there is much less control as stipulated in Article 2§2 of Protocol III to the 1980 Convention. In paragraph 3 of the same provision, moreover, it is the same problem, i. e. to attack a military objective located in an area of civilian concentration, but this time not by air, but by other means, i. e. land-land, possibly sea-land, in which case there is no absolute prohibition as in the case of an attack by air, but only a duty of caution to avoid collateral damage as much as possible. In a way, there is a revival of the obligations of Article 57 of Additional Protocol I. In the fourth paragraph of Article 2, there is a prohibition on the use of such weapons against plant cover, i. e. forests, trees. But what is wonderful is that this provision adds unless these forests are used to cover combatants or military objectives or if these trees are themselves a military objective. Professor Kolb has always found this provision to be a magnificent example of a singular legal drafting because if the general rules were applied, the result would be that nothing could be attacked if there was no military objective as in Article 52 § 2 of Additional Protocol I, and therefore this provision adds absolutely nothing to the general law. Why on earth would a belligerent attack a forest with incendiary weapons if there is no military objective? So sometimes we give ourselves a clear conscience by writing things in conventions and giving the impression that we have made an effort when in reality we have done nothing at all.
Nuclear weapons are a difficult chapter that we do not deal with here from the point of view of disarmament, which is quite another subject that should be addressed in the law of peace. Professor Kolb is interested in nuclear weapons here from the narrower perspective of the law of armed conflict. Is the possession of nuclear weapons prohibited by the law of armed conflict? The answer is clearly no, the law of armed conflict is concerned only with the use of nuclear weapons in the course of armed conflict and the effects that such use could have, in particular with regard to the principle of distinction. Is the use of nuclear weapons prohibited during armed conflict? The answer cannot be doubted in essence: if one is prepared to consider that nuclear weapons do not form a kind of exception to the law of armed conflict, but must respect the principles of the law of armed conflict, like all other weapons. If this is the case, nuclear weapons are clearly contrary to the law of armed conflict, if only for one reason, namely that nuclear weapons strike only on a large scale without any form of distinction. Military objectives and civilians are hit, and not only the civilians present, but also civilians of future generations, because the after-effects remain and are transmitted genetically.
Moreover, nuclear weapons also have an impact on other rules of the law of armed conflict, in particular the question of the environment, the type of damage inflicted on the environment is likely to exceed the threshold of article 55, but also, and this is not always considered, the right of neutrality, because the nuclear weapon and the radiation it produces do not have the delicacy of stopping at the borders of the belligerent state, but extend beyond them and a belligerent has no right to interfere on the territory of a neutral state.
The International Court of Justice was asked the question brutally and directly by the United Nations General Assembly, among other things, whether the use of nuclear weapons was still prohibited under international law. The Court replied in a 1996 advisory opinion on the legality of the threat or use of nuclear weapons and develops an argument.
This is perhaps the most successful expression of the International Court of Justice on an IHL issue, given that it was an IHL issue in essence and that it was an advisory opinion, so that the Court had an abstract question to which it had been able to respond. What does it tell us in this advisory opinion to the United Nations General Assembly?
There are two lines of argument in this opinion, one main one almost exclusive and the other a small way out that can be discussed all day and all night. Moreover, the doctrine has not been based on a lack of enthusiasm for this Court's opinion. The Court's general line of argument is not surprising, it applies the principles of international law and in particular the principles of IHL as we know them as the principle of distinction and it concludes that nuclear weapons in their use in any case are not compatible with the principles, so that their use would lead to a violation of international law.
Considering the fact that today's current nuclear weapons have a destructive force that goes up to a thousand times or more than Hiroshima and Nagasaki's weapons, it is quite difficult to escape this conclusion. The Court also adds other aspects such as the environment and neutrality, making a very complete analysis of the issue. But it also provides a small and worrying way out, which is found in the device with the famous letter e. The substance of this exception is to say that the Court does not know, that it cannot determine in an advisory procedure whether the use of nuclear weapons would in all cases be prohibited, including in the case where a State uses nuclear weapons in a circumstance of extreme necessity in which its survival is at stake.
It should be noted that the Court does not say there is an exception in the positive law for this case, it says no liquet, that it does not know, it cannot determine it in an advisory procedure because it does not have all the documents, it is not a litigation where there is a burden of proof. Obviously, the Court is in a delicate situation because nuclear deterrence, traditionally referred to as the MAD system, which means "mad" in English, MAD here means mutual assured destruction, the doctrine of nuclear deterrence. This doctrine of deterrence is obviously based on the fact that it is possible in certain extreme circumstances to use nuclear weapons. Because if this were never possible, the whole doctrine of nuclear deterrence falls into one fell swoop, at least legally.
The Court did not feel it was going that far and probably it was not entirely wrong not to do so because it is nevertheless observed that there is no general customary rule according to which States would have renounced the use of a nuclear weapon in all cases, if only because all States possessing nuclear weapons reserved for themselves the right to use them in certain circumstances of the type the Court refers to. To have a general customary rule requires a general practice and opinion and when you have a significant number of states and which ones plus all the respected ones for Nauru and the Vatican City, there are Russia, the United States, France, the United Kingdom, states of a certain importance; it is difficult to ignore their opposition to a complete ban. Of course, the Third World is in favour and the resolutions of the General Assembly adopted by majority vote are in this direction, but there are too many "objectors" for the rule to be established. This is the Court's reasoning.
We could discuss all day long whether the Court has not unlawfully tampered with jus ad bellum in jus in bello. Why did the Court resort to such a vague category, after all, as this circumstance of extreme necessity where the survival of the State is at stake? Because it could obviously have been believed, thought and considered more useful for the Court to say that it is possible to use nuclear weapons in retaliation for a nuclear attack. Why doesn't the court say that? In short, if you are attacked by a nuclear weapon, you can answer with a nuclear weapon. Wouldn't it have been more logical than using a formula that says that even if the Court says it doesn't know, survival in question, extreme necessity, it's true, but all this is still very subjective: when we're in a need for survival, there are some psychotic people who already shoot suspicious people when they meet someone in the night because they think they're going to attack them, sometimes these people are called police in the United States of America as Professor Kolb insinuated. Why then, the Court does not say that, to react with a weapon if you are attacked, if ever. Why doesn't she say that? Professor Kolb would frankly admit that he would have preferred it for his part because the only exception he can conceive of is that one, retaliation. Nuclear deterrence is basically that. That's why there are submarines also to ensure the second strike. If the entire territory is destroyed, there could be a reason to attack the other. For that, there are submarines and we do not say where they are. So if the opponent strikes and the entire territory is eradicated, the submarine somewhere will strike and also destroy its territory. So, it's all very elaborate.
Quite simply, in order for the Court to be able to do what Professor Kolb proposed, which was only retaliation for a nuclear attack, the States that possess nuclear weapons should have conveyed this kind of concept, but they have never done so. A whole series of states, the entire Western bloc that possesses nuclear weapons, has never agreed to limit the ability to use nuclear weapons only to nuclear retaliation. They have always used a more ambiguous vocabulary and therefore the Court cannot use that vocabulary since it does not correspond to the legal opinion that these nuclear-weapon States have themselves conveyed.
It should be noted that from the moment it may be possible to use a nuclear weapon in the case of this extreme necessity, when the survival of the State is therefore at stake, it means that, if necessary, one can destroy the whole earth to save one's State. Professor Kolb would like to know what it would have been like if from ancient Babylon, but we can go back further if there were still states worthy of the name before each of the states had possessed a nuclear weapon and perhaps had been able to use it to survive. The State is basically an abstraction, it is a public authority on a territory, the States pass. Even Switzerland is not the same state in 1848 as it was before, and Switzerland was a plurality of states and then became a federal state. So, political organizations change. If everyone had been able to protect their current form against disappearance by using nuclear weapons, if necessary, but above all, obviously, they are under attack or if this end of the State is due to external causes, if there had been a possibility of using nuclear weapons, we would frankly not have been here for a very long time. Here is the legal situation and we could not think that in the field of nuclear weapons, which is such a highly political issue throughout the doctrine of deterrence, a clean and clear legal solution could be reached. After all, the elders already had the wisdom to say maximis non curat preator. The supreme things, the very important things, are somewhere outside the control of the law. When it comes to life and death, the law is always at a certain distance. If we have decided to commit suicide, the law is far from you, at that moment there are other problems that affect you directly.
It was argued on the margins of the Court's opinion, and the Court did not take this up wisely enough, that it could not be said that any use of nuclear weapons would be prohibited anyway because, it was argued, as the United Kingdom did, for example, in pleadings before the Court, oral presentation to the Court to be more precise since there is no pleading in an advisory procedure, the United Kingdom has therefore presented, inter alia, the argument that there are certain very small nuclear charges, very small nuclear bombs that do not contravene when necessarily used in accordance with the principle of IHL. We can develop certain hypotheses: we can say that there is an enemy warship in the middle of the sea somewhere hundreds of kilometres from any state, any beach, any island, and there is an aircraft bombarding this ship with a missile that contains a very small nuclear charge. There will be a small radiation, but on the high seas and therefore it cannot be said that the principle of distinction will be violated. We can obviously do exercises of this kind even if we attack sites in the desert in particular.
What can be said about this is that obviously this is conceivable, we can play games in sandboxes and develop various hypotheses of this kind where nuclear warheads could be used without violating the principles of IHL. Except that militarily, all this obviously makes no sense today because no one attacks a warship with nuclear technology and what it implies even with a small load, just throwing a few beautiful traditional missiles at it and it sinks, we will not have fun using a weapon that is difficult to handle and whose price is still much higher than traditional weapons. It is therefore possible, but these are mind games, actually, and then real nuclear weapons are used to deter, the kind we know, they are not bombs.
Other prohibited means and methods of warfare (examples)[edit | edit source]
Refusal of quarter[edit | edit source]
The two easy aspects are as follows. First of all, it is the prohibition of refusal of quarter, which is a typically military vocabulary - refusal of quarter. This prohibition is found in Article 23.d of the Hague Regulation and Article 40 of Additional Protocol I. It concerns the announcement or threat or later execution of the refusal of an adverse surrender. So, what we are telling the opponent is that we will not take prisoners, those who surrender will have gone to arms. When this type of announcement is made, it violates the rights of prisoners of war, when it is simply announced, it is in the area of prohibition, which is the refusal of the neighbourhood. This type of announcement is prohibited because it is considered an illegal method of warfare, because it aims to sow terror in the opponent. For the right of prisoners of war who are not allowed to pass to arms, this is related to the Geneva III Convention.
There is also a prohibition on the forced recruitment of nationals of the opposing party, apart from the fact that there is also a prohibition on the recruitment of children of the opposing party, it is also a prohibited method of warfare. We can have traitors who enlist here, traitors from the other side's point of view, but collaborators from our point of view, it is only forced enlistment that is prohibited, particularly in the occupied territories. There is this rule already in Article 23.h of the 1907 Hague Regulations.
Among the aspects that deserve more explanation, there is first of all perfidy and war tricks. This is complicated from a legal point of view. And then there are reprisals, which are important from a practical point of view, but not as complicated from a legal point of view.
Perfidy[edit | edit source]
Perfidy was formerly prohibited much more broadly than it is today because it was linked to military honour and was not specifically codified as it is nowadays, but the rules of fair combat were learned in military schools. In the Middle Ages, European chivalry had imposed very generous rules, so the great fighters were generous and the small fighters, mercenaries and others who were brought back here and there could be extremely brutal, but then the knights were not compatible with their honour. As late as the 19th century, between European civilised states, there was this kind of training in military academies.
Today, perfidy is regulated in a much more restricted way because in the 20th century there is relatively little left of the idea of military honour between states that hate each other royally. There are scattered regulations in Article 23.b and 23.f of the 1907 Hague Regulations as well as in scattered provisions of the Geneva Conventions such as, for example, Article 53 of the First Geneva Convention, but concerning the Red Cross emblem. And then the really important regulation on perfidy is in Additional Protocol I to Articles 37 to 38. Article 37 is the key provision, Articles 38 and 39 are special provisions, special cases of perfidy that are specially regulated.
What is it when the lawyer talks about perfidy? As stated in Article 37 of the Protocol, this involves acts intended to mislead the opponent's good faith on a matter where IHL obligations are at stake. Someone is led to believe that they are in a situation where they must grant certain rights to the opponent or even have certain obligations towards the opponent in terms of IHL and these obligations in terms of IHL are used for hostile purposes. The simplest example we can think of that puts us in the situation is to pretend wounds to be rescued by thinking that when we come to be collected, we will have an opportunity to shoot them closely by killing them, much more than if we have to try to aim in the wave of the field. So we pretend to have an injury, we come to be treated, and we shoot: so it's a trap. Perfidy always deceives on the law, on the protections granted by IHL. Which was an obligation in the previous example is the obligation to assist the wounded and sick as found in the Geneva I Convention. The opponent's obligation is used for hostile purposes.
It is therefore also understandable why perfidy must be prohibited. For if perfidy is not prohibited and the adversary is allowed to abuse IHL as a method of warfare, it undermines the very basis of the application of IHL in times of armed conflict. If a belligerent has to say to himself that behind every act he observes and every IHL obligation he would in principle be required to implement is a trap for him, he will no longer grant protection.
This is very evident in commonplace examples of road traffic. When we report that in some regions, runners set traps, that is, they simulate a car accident, they put someone on the ground with tomato sauce, and then when we arrive with our car in the open country and we go out to supposedly rescue the wounded, it is a trap and we are robbed of everything we have been killed. The result of this is obviously that people after that no longer stop because if they arrive at a place where they see someone on the ground, they don't know if it's a real wounded person or an ambush and they will prefer to abstain from the result each time the person, if they are really wounded by simply dying on the spot. If we do not want this, we must obviously punish this kind of act and this kind of abuse of IHL.
To be more precise, it should be noted that perfidy within the meaning of article 37, therefore the main provision on perfidy is more limited than what might have been desired in the light of what has been said. IHL abuses are dangerous for IHL, one might have thought that any abuse of IHL should be punished. But if we look at article 37, the window in which such abuses are prohibited under perfidy is limited. Why? Why? First, the first sentence says it and says it very clearly, it is forbidden to kill, injure or capture an opponent by resorting to perfidy. It can therefore be seen that perfidy within the meaning of Article 37 is an abuse of the obligations of IHL on the part of the adversary with the aim of killing, injuring or capturing, i. e. attacking the physical integrity of the adversary. If deception is used that is not intended to attack the physical integrity of the opponent, it is not part of the perfidy in Article 37. We can see that compared to the 19th century, for example, even if we do not know the old law and military honour, this is a considerable step backwards. We still allow a lot, we still protect a core set of rules, those that go to the essentials, to physical integrity against manipulations of the kind described here.
Professor Kolb adds that only an act that has this hostile intention to kill, injure and capture is treacherous, and that therefore, conversely, an act of deception that is not for a hostile purpose as we have defined it, cannot constitute treachery as, for example, to pretend wounds, we are not injured, but this time not to shoot the opponent when he will flush himself out, but because we are too cowardly to fight and we think that if we pretend wounds, they will come for us and we will be out of hell. It is certainly a deception that is friendly, not a perfidy, since the purpose of the act is not to kill, injure or capture an opponent, but rather to get out of the hell of the fighting. So maybe it will be considered as desertion by the national state, but that in any case concerns domestic law and certainly not IHL.
Since perfidy is thus narrowly defined in article 37, we see the examples in letters a, b, c and d, it was necessary to specifically regulate certain other cases in articles 38 and 39 because in some cases manipulations must be prohibited upstream. That is, even if they are not intended to kill, injure or capture, because the damage they can do to the application of IHL is still too significant to be ignored, and that is why 38 and 39 were included in the protocol. The difference is that in these particular cases of perfidy, what falls fundamentally and this purpose of killing, wounding or capturing, is not necessary here; it is enough to do the act of deceit as such, it is itself that is prohibited, whatever else this purpose may be.
What are these special cases in Articles 38 and 39? First of all, 38 concerns the recognized protective emblems. So, the Red Cross or the Red Crescent see the crystal or the red diamond, Additional Protocol III of 2005 to the Geneva Conventions. If these signals are abused, considerable damage is created because the opponent will always have reason to doubt that the car with the red cross sign is really a Red Cross car and therefore he will hesitate to let it pass. If there are wounded and sick in it whose survival depends on rapid transport, they will simply die. In any case, the car will not be able to pass through because of suspicion. That is why these emblems are particularly sacred and, regardless of whether you are trying to kill someone, you must ban them. If you use a car with the Red Cross emblem to transport weapons or war material, this is the typical case, you do not aim to kill, injure or capture someone, you simply transport weapons. After that, the weapons when they are returned used will have some effect, but weapons are simply transported. This would therefore not be a perfidy 37, but obviously such cases must be prohibited and this is therefore the purpose of Article 38.
Article 39 then concerns other emblems which are not emblems protecting IHL, but signs of nationality, of a third power. First of all, it is a question of protecting neutral states against the danger of being drawn into the conflict by the abuse of their flag or badge. Then there is the old question, still controversial in the past, on the use of uniforms and signs of the opposing party, second paragraph of Article 39: it is prohibited to use enemy uniforms at the time of the attack or to conceal or promote military operations. This rule also repeats, for war in general, an old customary rule of the law of the sea for armed conflicts, of course. It had been accepted for some time that ships could use false flags, including opponent's flags, to cover themselves. And it was also accepted that when the time came for the attack to take place to raise its true colours, i.e. the flag of the State from which it otherwise emerged, it was committing a treachery. So you can sail on the high seas with your enemy's flag to cover yourself, but when you move on to the military operation, you had to raise the real colours so as not to commit a treacherous act and this rule has been taken up again here with regard to enemy uniforms. This is a new rule of the protocol, during the Second World War the issue was still very controversial and the Nuremberg case law still goes in all directions, sometimes it says it is prohibited and sometimes it says it is not prohibited. Here, we have evolved with regulations in the protocol.
Ruses of war[edit | edit source]
War tricks are allowed, they do not constitute perfidy and a belligerent can use them as much as he wishes. There are even ancient cultures such as China where prominent thinkers have presented the supreme art of war as the art of deceit. If you can win a war by deception and cunning without bloodshed, you are supremely intelligent and therefore you were invited to do so. It's not perfidy, it's cunning. And it is not wrong to think that cunning sometimes leads to results with much less destruction.
So what is a war trick that is not prohibited and what distinguishes it from perfidy? In very simple terms, and this is apparent from the second paragraph of Article 37, deception in matters of deception is about a fact and not about a legal obligation under IHL. We deceive the opponent about a factual situation. You do not owe your opponent, in an armed conflict, good faith on questions of fact, you are not obliged to always tell the truth about the fact.
So what are such war tricks? This already starts with very simple measures. If we walk towards Saint-Maurice - Martigny, we will see that there is a whole series of camouflaged military bunkers, we have made it look like nature with green cover and it is a military bunker. There is one exactly on the knee of the Rhône from Martigny to Branson, there is one that is very typical that you can only really see when you are next door. It's a trick, you hide this kind of perfectly legal thing, you don't deceive on any IHL rules, you just hide the thing so that you can't destroy it so easily. There are well-known historical examples such as the Trojan Horse, a donation is made and in the soft belly fighters are brought in and they are inside the city walls, it is a war trick. After that, there are a whole series of other historically known tricks. For example, before the Allied landings in 1944, they wanted the adversary to believe that the landing would be in the Pas-de-Calais and they built a whole series of dummy positions on the British side by making the Germans also believe that the date of the landing would be another one by false radio transmissions that they knew the Germans would receive to deceive them about the reality of the landing which would be further south in Normandy and about the date. It's a war trick, it's perfectly legal. The Yugoslavs, or to be more precise the Serbs, during the attack in the context of Kosovo in 1999, they used a whole series of positions and even installations such as tanks made of rubber, for example, i. e., if we can pass the somewhat vulgar expression of Professor Kolb, a whole series of "inflatable dolls". The allies bombed these so-called tanks or positions and bombed rubber. The actual military equipment was hidden in such a way as to prevent this military equipment from being destroyed while engaging the adversary in unnecessary bombardment and keeping him occupied where he does no harm. We can simulate troop movements in a certain direction while we want to attack elsewhere, we can take advantage of the fog, we can ambush, we can change direction plates, in Louis de Funès' film, La grande vadrouille, we shoot Marseillais - Paris and then the Germans obviously go in the wrong direction. One can imagine a quite endless number of war tricks, the commentary on the Additional Protocol to Article 37§2 gives a whole series of examples. This is deception on a question of fact and that is permitted in armed conflict.
Let's now look at some examples to make sure we understand. Let's assume that there too Louis de Funès with Bourville, they find uniforms of the Germans, they put on these uniforms and they run away, so it's to cover a leak. It is not to kill, injure or capture, so it is not perfidy as understood in article 37. With signs of nationality, we are in 39§2, we cover ourselves with the uniform of an enemy state. It is not used to attack, conceal or protect or obstruct military operations, we are completely outside a military operation, individuals simply want to flee. If we pretend wounds to be collected and transported to the opposing side where we hope to be able to spy and transmit information through a transmission system. It is not section 37 and it is not an assumption 38 and 39. The act is intended to spy and not to kill, injure or capture an opponent. Another example is to have a Red Cross car with the Red Cross emblems. The red cross emblems are removed and weapons are carried in the car. In any case, it is not 37 because it is not a question of killing, wounding or capturing, but a question now 38, so no perfidy 38 because the emblem is not abused, it is removed when weapons are carried, so we do not "sail" or the faulty claims, the colour is announced, when there is no emblem, the car is used for other purposes, there is no emblem on it, either it is removed or covered and put back on when transporting injured people: it is legal. Obviously, if we leave the emblem while we are carrying the weapons, we are in a case 38. With these three examples, each case was negative, this is to show that the hypotheses of perfidy are nevertheless quite limited in the law of modern warfare.
The reprisals[edit | edit source]
There are certain analogies in the matter of armed reprisals with the law of peace and the countermeasures that we analysed in the framework of the course on public international law II with the case of State responsibility, but there are also differences between retaliation in peacetime, which is called countermeasures in modern law, and retaliation in the law of war or the law of armed conflict, the most obvious difference is that countermeasures in peacetime must be peaceful in principle, armed retaliation is prohibited in peacetime, in wartime, of course they are not. When in armed conflict, the use of force as a matter of principle is not prohibited and therefore reprisals can also use force;
What makes it a reprisal is that violence is used against a rule of the law of armed conflict. If we simply use violence, we are in a belligerent violence. If violence is used against a rule of the law of armed conflict, an installation or object that would be protected by an IHL rule is attacked, then this can only be legally justified by resorting to the idea of reprisals.
How are these reprisals regulated today?
A word about the past. Until the end of the Second World War, reprisals had a much broader scope of application in both peacetime and armed conflict. Since then, we have been on the way to restrict the scope of acceptable armed reprisals in times of armed conflict. A major debate on this issue began at the Geneva conference in the 1970s at the time of the adoption of the protocols. It turned out on that occasion, and it has not been denied since there have been two major camps in international relations among States: some in favour of a residual area of retaliation, that is, some States that do not want retaliation to be generally prohibited, and a large number of States that want to move ever further towards a reduction in the area of retaliation and ideally a complete ban on this practice.
The arguments of each other are multiplied. Professor Kolb summarizes them by going to the point. The arguments of a number of Western States, such as the United Kingdom, for example, in favour of maintaining not very broad, very bold retaliation, but maintaining the ability to respond to a violation of the law of armed conflict with another violation of the law of armed conflict in order to rebalance the situation and give the State violating the law an incentive to return to its respect, these States argue above all with the following consideration when one is in an armed conflict, and when, vulgarly said, one hits on it, there is no other recourse that can establish or restore respect for the law than to sometimes oppose violators of the law by violence. Ultimate means of sanctions for armed conflicts. If this means were totally prohibited, it would mean that the State suffering a violation of the law of armed conflict could not respond adequately and would therefore have to suffer it by leaving all the advantage to the violator.
The alternatives that could be considered in peacetime are illusory in times of armed conflict. We can take economic and other sanctions, we will see their effects in the long term, but when we are attacked by chemical weapons, we will not wait three or four years to see if ever, and in addition and in the annex, these states will say that fear of reprisals is a major obstacle for states that may be tempted to violate the law. History attests to this, so why did some states like Italy use asphyxiating gases in Africa because they did not fear retaliation. On the other side of the bar, the Third World States in particular, which no longer like to be called that, but in 1977 they were called that way. These states, the large mass of states therefore, argued against retaliation. This is a barbaric modality that hits innocent people because they are subjected to a violation and then another violation is committed against people who have not supposedly committed it. If we are bombed and civilians drink because the bombing was not done according to the rules of the art and now we are also starting to bomb in a more liberal way, it is other civilians who will drink and therefore innocent people from that point of view. It is also said that reprisals are a means of violence that risks collapsing the entire law of armed conflict because it is a justification for violations of the law. Ultimately, that is always the case, we take the liberty of violating a rule, legally speaking, it is still relatively delicate to give everyone, not a court, not a public body, but the subject himself interested in his self-interpretation, in psychosis during the war, a way to say that we are free from this or that rule because we are responding to a violation by the other party. Are there not always violations of the law of armed conflict, so if we could always respond with reprisals, what would remain of the law of armed conflict? The good example is that with the First World War and the submarine war, the whole law of maritime armed conflict has literally sunk.
These are some of the arguments put forward by hostile states. We can therefore see that the two positions are not completely irreconcilable, but they are clearly different. It was therefore impossible in 1977 and since then to reach a perfect compromise. We can reach a perfect compromise, which is not even a compromise in the strict sense of the word, but a mutually agreed solution when we agree. When we disagree, we must look for points of convergence, but these are only partial. This is what is happening in the current law of armed conflict regime, in the Geneva Conventions, in the Additional Protocol and in customary international law.
So what is there from a positive point of view? In this respect, there is still a fairly clear bipartition between the law of Geneva and the law of The Hague. Perhaps the only subject of IHL where differentiation is not only descriptive, but also has a normative aspect is that of reprisals, because in the so-called Geneva law, i. e. the protection of persons, reprisals have been entirely prohibited, at least since the 1977 protocol. In the 1949 Geneva Conventions, which do not therefore concern the conduct of hostilities, but only the protection of persons hors de combat, there was already a clause in each of the conventions outlawing reprisals against persons protected by each of these conventions: the wounded, the military sick, prisoners of war and civilians.
This is article 46 of the first article 47 of the second for purists of the language of the second, article 13§3 of the third and article 33§3 of the fourth (in classical French, "second" means that there is no third. If we say "Second World War", there is somewhere the wish that there will be no third, we must say second if there is a third. In old French grammars, we find it explained). So that's it for the people out of action.
There is then a very important rule, which is new and which has been challenged and still has some interpretative declarations or even reservations. We should see exactly what this is all about through careful interpretation. There is this provision in the supplementary protocol, only the first one, there is nothing in the second one for non-international armed conflicts. Obviously, Article 51 § 6: brief, clear and clear provision, but so important in its scope: "attacks directed as reprisals against the civilian population or civilians are prohibited". It will therefore be appreciated that this rule is not identical to that contained in Article 33 of the Geneva Convention IV since that of Convention IV concerned civilians in a context of hors de combat, and the rule previously cited concerns civilians during hostilities, in particular bombardments.
The rule is significant in scope, because it basically means that with regard to civilians themselves in the conduct of hostilities, even in bombardments, one cannot claim a violation of the other party's right against it or one of its allies in order to take liberties in this regard. Which also means that practically speaking, if we think about it, that bombings such as Dresden, Leipzig and other German cities would no longer be lawful today as reprisals and we could not say that the Nazis started with terror bombings, which is a fact, and we are now responding to them with bombings that we will not call terror because we are friendly and nobody calls ourselves terrorists, but which are nevertheless at the root.
We therefore understand that it was not that obvious to adopt this rule and that it caused teeth to grind. Is it customary law? The question is not fully cleared. According to the case law of the Eritrea-Ethiopia Commission, "yes", according to the ICRC study as well. But some still have a slightly more ambiguous position on this matter. Let's take this rule for granted. Professor Kolb believes that it is customary law and is obviously a treaty rule that binds the parties that have ratified or acceded to the protocol.
Old courts may reverberate far away from the brain, namely Article 160§5 of the Vienna Convention on the Law of Treaties. A material breach of a treaty which may normally result in the suspension or termination of a treaty of the injured party by the injured party may not result in such suspension or termination in the case of a treaty of a humanitarian nature. Of course, the conventions we are discussing here are exactly of this nature, so it would not be possible to suspend the Geneva Convention III on Prisoners of War because of a violation and say that since some of our prisoners of war have been mistreated, we are taking the liberty in retaliation to mistreat some of them also from the other party not departing from the precepts of Convention III. There is nothing more than a reaffirmation of the rule that reprisals here are not lawful, since it is not a question of reciprocity; we are not aiming for reciprocity in these cases, but for the absolute protection of certain people against the evils of war. We do not see today why it should be said that some civilians have perished because the law has been violated, so we can kill others by also violating the law in the hope that in this way we will rebalance the situation like Apocalysse Now.
In Hague law, there is no general prohibition of reprisals. There are only certain specific prohibitions. Therefore, there remains an area of application of retaliation in the law of modern armed conflict. The area in which this retaliation capacity is most important in Hague law is that of arms law. And moreover, what better weapon than the atomic weapon has always served as a scarecrow, a deterrent or, finally, it is above all the case of reprisals that was targeted: if you are attacked by an atomic weapon, you reserve the right to counterattack with an atomic bomb; you have to admit that the atomic bomb is nevertheless something. Therefore, for smaller weapons, the same principle applies unless some conventions prohibit it, such as the Chemical Weapons Convention, in any case for those who are parties and fortunately there are many.
We must therefore look at each case on its own merits, but there is no general prohibition of reprisals in this area, nor is there any in Geneva law, there is no general rule in Geneva law, but with the provisions mentioned here, we arrive at a general prohibition of reprisals not through a rule, but through the conjunction of each rule: one in each of the Geneva Conventions for protected persons, and then one in the protocol for civilians outside a situation of control by the opposing party. This gives us a general protection in the sum.
If retaliation remains lawful, i.e. in Hague law, there are certain rules on its implementation. These rules are specified in the ICRC's study of customary law. The most important conditions for retaliation are as follows.
The first condition is that retaliation must be the ultimate means, the means of the ultimate resort - retaliation is the ultimate ratio. In this respect and in an annex to this rule, reprisals must be preceded by a summons unless there is no material time to do so in view of the damage otherwise incurred, the summons is necessary. As in the law of peace, since the legal system does not allow for relief from these injunctions, retaliation is a pure right of necessity and as long as the other party has not had the opportunity to remedy the wrong, there is no need to resort to retaliation. One might think that this rule is a little bit wanted, why give more time to the other party, to the "wicked other party who strikes me illegally", and this obviously often reveals the psychology in which we are trapped, that is to say the fault is always the other's and not ours.
It happens more than once that the opposing belligerent State does not know that a rule has been violated because others have not been given in this sense. Not always, of course, but it happens that commanders, soldiers, in this very extraordinary and nervous moment of the armed conflict, can commit violations. Telling the other party that certain things have happened, asking them to stop it is sometimes giving them the opportunity to put their own stables in order.
If retaliation is ultimately adopted, it must be proportionate. What this means is relatively complex, this question is no different in terms of the law of war than it is in peacetime through countermeasures. The intuitive aspect of the rule is that one cannot govern a small violation with only a great deal of freedom from the rules. Examples, one can perfectly well find, some ill-treatment of prisoners of war because this had to walk in an uncomfortable position for a few hours in the desert under the sun, a transfer of prisoners of war not quite compatible with the conditions of the Geneva Convention or then the capture card of the prisoner of war, Article 70, which would be filled with delay compared to the deadline set out in the Convention, this obviously does not give us the right to react by launching an atomic bomb.
Finally, since retaliation is a matter of great importance, it is the taking of freedom from the law and it can have serious consequences, it is a matter of decision that must be taken at the highest level of the military command or even the civilian command, that is, the government. This is not a case that can be left to subordinate staff. So it's a matter of high command as we would say in the classic language of English. In military matters, English has been the classical language for a number of years at least because of the predominance of a certain state that can be thought of.
The "Law of Geneva": the treatment of protected persons[edit | edit source]
Geneva law is the treatment of protected persons, once again, in the international armed conflict for the time being. Geneva law is about protected persons and protected persons issues, it is about humane treatment. This is the basis for all the normative content of the Geneva Conventions: humane treatment of protected persons when they are in our control.
The general principle of human treatment [edit | edit source]
Protected persons are certain persons of the adversary, the enemy, civilians, prisoners of war, sick members of the enemy army, who must be treated humanely when they are under our control: it is the principle of humanity or human treatment, it is the North Star in this matter.
This principle of humane treatment or this principle of humanity is found in key provisions in each of the Geneva Conventions, perhaps the only one that should be known by heart, not the text, but just the figures. These are articles 12, 12, 12, 13 and 27 of the four Geneva Conventions. The articles are largely similar in content, but obviously adapted to the situation envisaged by each of these conventions.
The same principle is found in Article 3 of the Geneva Conventions for those in non-international armed conflicts, then in Article 4 of Additional Protocol II and also in detail in Article 75 of Additional Protocol I. This customary law provision contains a very extensive list of human treatments and it binds together practically like a list of human rights.
What does "humane treatment principle" mean? It means concrete things, but concrete things are not immediately in principle, they must be drawn from it by means of concretization. And that is what the Geneva Conventions are all about, since they contain almost a plurality of provisions, a whole series of concrete, specific provisions in which there is a specification of what is required by the principle of humanity or human treatment.
At the general level of these specifications, there are at least three aspects that must be considered and taken into account in this matter. These are facets of the principle of human treatment. The first aspect is that a whole series of provisions are aimed at respecting or ensuring respect for the person being protected. And so the question of respect for the protected person is a facet of human treatment. Respect is a matter of negative obligation. It is about not interfering, not harming, not threatening not to harm, not sparing protected persons.
The obligation here is an obligation to abstain. This is not enough to treat humanely, because otherwise it would be enough to leave your child alone, not to leave him to eat and then say that he will be treated humanely when he dies. We obviously need to go further and we are thus entering the field of protection; protecting protected persons implies a positive obligation, an obligation to do. This obligation to do implies, on the one hand, protecting these people from various evils or dangers, for example, not exposing them to crowds, to public curiosity where they could be booed or even lynched, they are enemies after all; but also to treat these people with a whole series of measures, medical of course if necessary, hygiene, food and so on. We will see what this implies later, which is issues of Convention III at best, for prisoners of war.
Then there is, thirdly, and this is human treatment in the broader sense, it could also be separated and made an independent principle, but out of simplicity Professor Kolb contracts it and puts it under human treatment, it will probably not shock us, it is the principle of non-discrimination or according to the language of the Geneva Conventions the obligation not to distinguish in an adverse way.
Adverse distinction is prohibited or discrimination is prohibited. On the other hand, we will avoid talking about adverse discrimination, because it is obvious that if we did so, we would not only show that we did not understand the meaning of the word "discrimination". Discrimination" is always adverse by definition, so it is negatively connoted whereas "distinction" is neutral, so if we want to say that a distinction and condemnable, we must add an adjective, an epithet and this is done by "adverse" in the vocabulary of the Geneva Conventions. The word "discrimination" was not in use in 1949, which is simply why it was not used. But the substance is obviously there.
So what is in the non-discrimination rule?
Article 16: "Taking into account the provisions of this Convention relating to rank and sex, and subject to any privileged treatment which would be accorded to prisoners of war on account of their state of health, age or professional ability, all prisoners shall be treated in the same manner by the Detaining Power, without any adverse distinction of any kind, race, nationality, religion, political or other opinion, based on similar criteria".
This is a relatively rich provision that shows us first of all that certain distinctions are possible because they are not considered inadequate, that is, they are based on a recognized criterion. These are distinctions according to rank, there are special rules in the convention according to the rank of the prisoners, such as, for example, their duty to greet. The same applies to sex, there are more favourable provisions for women in the Convention and this is therefore not contrary to the principle of non-discrimination and then there may be certain privileges with regard to health status, and this is also the case for other provisions such as age for example, Very interesting because we know that there has been a whole series of child soldiers captured since the 1980s in various conflicts and it also makes sense that these children receive more favourable treatment than other prisoners of war, for example with regard to their schooling. Professional ability may be different things such as the fact that there are prisoners of war who have medical abilities and it is obvious that depending on their abilities they may receive a particular regime, they may be called upon to provide care and receive in return a particular regime, this is compatible with the convention apart from these particular situations or distinctions are recognized, criteria are listed here which indicate factors that cannot be taken into account to distinguish race, nationality, religion, political or other opinion based on similar criteria, the list is obviously not exhaustive. Any criteria similar to those mentioned here are not adequate, are not recognised as adequate, do not justify a justified difference and cannot be used to make a negative distinction between prisoners of war.
There are similar provisions with small variations, obviously because civilians do not experience the same situation as prisoners of war, but there are similar provisions in each of the non-discrimination conventions.
Geneva Conventions I and II: the care of the wounded and sicks[edit | edit source]
Convention I[edit | edit source]
We are going to start, and you are going to fall in love, because who could have expected it, starting with Convention I. Number I protects wounded or sick soldiers, they can be wounded and sick at the same time, they do not lose their protection because of it.
Wounded and sick soldiers from opposing forces. It is a relatively short convention, with about fifty articles in the body of the text and relatively technical.
There are three main contents, not three sections, but by going there with a kind of legal x-ray, according to Professor Kolb, we can determine three main contents of Convention I. First, the obligation to respect, protect and assist the wounded and sick in article 12 et seq. Secondly, the obligation to organise medical personnel and units in Article 19 et seq. And then, what is only one provision of the convention, but according to Professor Kolb it is so different from the others and raises another problem, but really very important, which is the question of information on the fate of the wounded and sick, this is the information office in Article 16 of Convention I.
These are the three big blocks. The first two are a series of provisions, the last block is a single article, but of particular importance. Let's see what it looks like by analyzing each of these normative blocks.
The obligation to respect, protect and assist the wounded and sicks[edit | edit source]
Article 12 of Convention I contains the main rule of humane treatment: "Members of the armed forces and other persons mentioned in the following article, who shall be wounded or sick, shall be respected and protected in all circumstances. They shall be treated and cared for humanely by the Party to the conflict in its power, without any adverse distinction based on sex, race, nationality, religion, political opinion or any other similar criteria. Any attack on their lives and persons is strictly prohibited, including, inter alia, killing or exterminating them, subjecting them to torture, carrying out biological experiments on them, leaving them premeditatedly without medical assistance or care, or exposing them to risks of contagion or infection created for this purpose. Only reasons of medical emergency will allow priority in the order of care. Women will be treated with all the special consideration due to their gender. The Party to the conflict, obliged to abandon wounded or sick to its adversary, shall leave with them, insofar as military requirements permit, part of its personnel and medical equipment to contribute to their care.
What is remarkable about this provision in Convention I is the non-discrimination clause. It is for what it contains: "without any adverse distinction based on sex, race, nationality, religion, political opinion or any other similar criterion". There is at least one criterion that does not flow from the source, which is nationality. Under this provision, as a belligerent, one is not allowed to make a difference with regard to the wounded and sick by virtue of nationality. In practical terms, this means that we must, as we say today in medical jargon, prioritize according to medical needs, that is, according to the seriousness of the injuries and a whole series of related circumstances, and that we cannot take into account who is your and who is other people, who is our nationality, who is our nationality, who is nationality, who is a co-belligerent and who is one of an opposing belligerent.
This rule was imposed with all its naturalness during the time of the royalties in Europe because there was no particular inimitation, it was at the bottom of cabinet wars with professional soldiers where there was no personal enmity, it was obvious that one was cared for according to needs, it is an old rule of chivalry moreover. The fact that this rule has long since lost its relevance is self-evident and it is not easy to explain to people all over the world that they will not be able to give priority to their own, but that they may have to give priority to enemies depending on the severity of the injuries. This is still morally something very developed and Professor Kolb assumes that one should not be completely subservient to the ideology of the SVP to have any hesitation in this regard. Professor Kolb admits that he is not exactly familiar with the practice in this area, because States do not shout loudly and clearly that they give priority to their own roofs and let others die contrary to what the Geneva Convention says. The professor has some doubts about how to proceed in this matter in 2015. In any case, he takes into account that this is in the Geneva Convention and that it corresponds to current medical practices if we then look at medical practices, that is exactly what it is. Simply, in times of peace, in times of war, even if it is different, Professor Kolb does not know anything about it, at least not about the convention, that is quite clear.
Military persons who are wounded or sick and under the control of the opposing power are at the same time prisoners of war. Since they are being cared for, it is because we have control over them and therefore Convention I and Convention III apply at the same time.
The obligation to provide assistance to the wounded and sick falls on the warring party and its military, health and medical bodies in this case. The civilian population is not obliged to rescue any wounded and/or sick enemy soldiers it may take in. However, if it decides spontaneously to do so, i.e. if civilians decide to assist wounded and sick enemy soldiers, perhaps wounded on the battlefield, the Convention specifies in Article 18 that such persons cannot be criminally prosecuted for the acts of assistance they have provided. Normally, the question of criminal proceedings and a question left to domestic law, which can define these offences as it sees fit. Here, however, the convention contains a rule of inhibition of this state power, it requires states not to penalize such attitudes; they could be penalized as assistance to the enemy and here we ask not to do so in the best tradition of Solferino of 1859, because that is what happened in this epic battle that inspired a certain Henri Dunant.
Finally, there are several rules in Article 15 on the search for the wounded and sick, because it is pretty to say that once they have been collected, the wounded and sick must be cared for, but sometimes it is necessary to be able to collect them precisely, because otherwise they will die before they can even be treated. However, it is not always easy to go and get the wounded and sick, because as long as the battle rages and the fire is not silent, it is impossible to go and collect people, you simply risk being killed yourself. That is why Article 15 asks the belligerents to try to conclude ceasefires whenever the need arises, the main objective of which is to provide relief to the wounded and sick, that is, to collect and evacuate them. Breaks in the fire in order to collect these wounded and sick and these questions are also specially regulated for areas, localities, cities surrounded or under siege which is the subject of the third paragraph of this provision.
The obligation to organize medical personnel and units[edit | edit source]
The obligation to organize medical personnel and units is in Article 19 et seq. We have already discussed the demilitarized, neutralized and sanitary zones. Staff and medical facilities enjoy immunity from attack under Article 19. What is most important is that this immunity from attack is not absolute, it is relative in the sense that immunity remains only as long as the areas in question and that the facilities and personnel in question do not abuse their status by committing hostile acts. If this were to happen, for example, if a health zone where wounded and sick are collected is used for acts of warfare, missiles are launched from the zone, for example, immunity against attack is lost, there is therefore a loss of protection, it is therefore a heavy responsibility to abuse these zones, the wounded and sick who are there and civilians are directly endangered. The convention simply makes a final attempt to save the situation to help the wounded and sick, because it does not allow the attack immediately, but requires a summons as in Article 21. A summons is therefore required. This rule would probably not apply in turn if the summons was not practicable in view of the entity exposed to the danger of the opposing belligerent, but it is difficult to imagine that a health zone could perform acts of such a magnitude that the summons would not be reasonably possible.
Such facilities must therefore not be used militarily, personnel must not engage in acts of belligerents, etc., otherwise they deprive the wounded and sick of their protection, which would be more than unfortunate.
In order to ensure that this protection against attack does not remain illusory, it is provided in the agreements that the installations, personnel and areas in question are marked with protective emblems. In addition, health personnel are indicated not only by the emblem on an armband, but also by a special identity card in Article 40 § 2; the use of the emblems to indicate installations as well as areas or even personnel is not mandatory, i.e. they may be waived for serious reasons and in any case valid reasons and such serious and/or valid reasons in practice, it means one thing: if the marking puts us in danger, they may be waived.
There are cases where installations are omitted, as soon as they are reported by red crosses for example are attacked. This is an old practice; the Italians attacked a whole series of Red Cross health facilities during the Ethiopian War in 1935-1936, Marcelle Junod, the ICRC delegate reports in her book The Third Fighter. In Lebanon in 1987 there is a similar situation and the ICRC delegate at the time was Sylvie Junod, Marcelle Junod's daughter, so it is from father to daughter. It is therefore possible to refrain from specifically reporting these installations, knowing of course that this way we are entering an ambivalent field because perhaps we are protecting them more against those who would attack directly in violation of the law, but at the same time we may protect them better against those who do not want to attack these installations, but who would make mistakes. It is therefore a question of appreciation that can be extremely delicate.
The emblems applicable today are in practice mainly two, the red cross on a white background, i. e. the Swiss flag with the colours reversed because of Henry Dunant, of course, a tribute paid to Switzerland; as well as the red crescent. The red lion still found in the conventions is an emblem that is no longer applicable. It was the emblem of Iran before the revolution, therefore of Persia, before the Islamic revolution, it is now obsolete. It is still found in the conventions today, but it no longer applies. On the other hand, there is the new emblem, but to Professor Kolb's knowledge, it is not widely used except to say a little, there is the emblem of Protocol III of 2005, the red crystal.
Secondly, and this is perhaps a surprising rule for the uninitiated, sanitary equipment is war booty. This means that this equipment can be taken by the opponent who can then use it to continue to provide care. This also means that the health zone must not resist the takeover by the opposing forces, because resistance would be a belligerent action and this is not allowed. The health zone can therefore be taken by the enemy and the equipment, he can use it, so there can be a handover.
Health zones must not be militarily armed, precisely because this is a guarantee for the opposing belligerent that these zones will not be abused for military activities. However, it is permissible to have soldiers guarding these areas, because in periods of armed conflict, looters and criminal elements of all kinds and types are frequently present and it is obvious that such areas where there is equipment of some value must not be left open to all winds. It is therefore possible to have military personnel on guard and these military personnel can be armed for this purpose. The applicable rule is that the weapons allowed must be hand-held weapons, so the military must be able to carry them by hand. Anything in excess of any order of magnitude is not permitted. They are therefore weapons of self-defence or defence of the post.
It is also accepted for reasons of pure reasonableness that the weapons of the wounded and sick, when the wounded and sick arrive, we must not forget these wounded and sick, here they are soldiers, they have weapons these soldiers and it is therefore necessary to collect these weapons and initially they will be kept in the medical zone before evacuating them. Obviously, we cannot consider that the presence of these weapons, which are also normally hand-held weapons, should not be considered as an illegal weapon in the area, but should be evacuated according to the circumstances, i. e. as quickly as possible, but this depends of course on the means of communication and the lines as they are located in the field.
Health units or health zones in neutral states are possible. That is, a neutral state can send medical or medical personnel, facilities of any kind to the territory of the belligerents and manage a health zone. It is a kind of service rendered to the belligerent, they are relieved of a burden during the armed conflict and the action is still rather humanitarian in nature. It goes without saying that this service is not contrary to the right of neutrality, it is not participating in armed conflict, it is simply carrying out humanitarian action knowing, of course, that we must behave in accordance with the rule of non-discrimination, we cannot say that we are only caring for the wounded and sick of one party, this would be incompatible with neutrality, but not with sending such a health unit.
This health unit can be marked as such, i.e. as a health unit of a neutral state, it will then carry the protective emblems - red cross, red crescent - and it will also carry the flag, a neutral state flag will be raised. It is therefore quite possible to see in territories where there is a war raging a Swiss flag, not inverted, indicating the position of this neutral state.
Then there is another rule. A belligerent, when capturing opposing forces, may keep the medical personnel of the opposing forces. Much as the material he can retain becomes spoils of war, he can keep it, so, but not in the same way, people are never spoils of war, but in the same way, he can keep in prisoner of war camps the enemy medical personnel he has captured with enemy combatants.
The reason for this rule is that a belligerent may benefit from the assistance that such enemy medical personnel can provide to care for the wounded and sick of their own nationality. So, if we have Switzerland against Italy and we are in the Swiss army as a medical person, for example, and we are captured in Marignan in Italy during a fine battle, the enemies will be able to keep us in a prisoner of war camp and get on with the task of treating the Swiss who are there. It relieves him of having to do it himself, it relieves him of his health capacities and as long as there are needs for care, he can keep us. This also makes sense from a material point of view, because it is obvious that a doctor of the same nationality and army as the wounded and sick not only knows the needs of these wounded and sick, knows culturally the uses, knows about what they are used to, what medicines they take, but also speaks their language, which greatly facilitates communication, it is very important in terms of care. Otherwise, wounded and sick prisoners generally have more confidence in the medical personnel of their nationality than in that of the enemy. So it goes better from the beginning and that, as we know, every doctor will confirm, there are a whole series of psychological factors such as good communication with the doctor and trust, which are an important part of the healing process. So it's a rule that makes sense. Captured medical personnel have a special status under Convention III, but they may therefore be kept to provide care, in particular to persons of their nationality. Of course, it is also possible to use them to treat other nationalities, but the main concern is that, first of all, he treats persons of his nationality who would be held in prisoner of war camps - Article 33 of Convention III and 28 of Convention I.
It is also possible to request medical contributions also from prisoners of war who are not doctors, but who have medical knowledge. In this case it must obviously signal itself otherwise the holding power will not know it, but it is possible to signal itself a little like it happens in trains from time to time. This is possible in the context of this case - Article 25 and 29 of Convention I.
Serious breaches of the most important obligations of this Convention, i.e. concerning the care of the wounded and sick, constitute war crimes and are therefore called serious breaches. These are conventional war crimes. "War crime" is the general category of customary law; "serious crime" is a special category of war crime defined in the Geneva Conventions, so it is a violation of the most important provisions of these Conventions and is called a serious crime. The distinction is made because the legal regime for war crimes in general under customary law and serious breaches of conventional law are not identical. There are some differences. One of them is that war crimes are not obligated to be prosecuted, they can be prosecuted, serious offences are prosecuted, they are obligated to be prosecuted, it is not just a faculty. So there is a certain difference, we call them serious offences. Professor Kolb refers to the criminal provisions of Convention I in Article 49 et seq. and in particular Article 50 for serious offences. When we talk about serious offences, we must say "serious offence", we cannot say anything else, if we say "serious violation", we are already in the wrong because it is something else from the point of view of international criminal law; there is no variation, this offence is not serious or nothing.
The information offices[edit | edit source]
Finally, there is the question of information, which is the third block: information offices - Article 16; a similar provision is found in Article 19 of the Geneva Convention II.
The information offices are still very important. It is because the belligerent has a duty to register each wounded and sick person in his power - Article 16§2, it also specifies what type of information must be collected and inserted in forms. The main purpose is to know who is where so that people do not disappear first and secondly family links can be established. It is often extremely serious for families not to know whether their loved ones have died, are not dead and the circumstances in which they find themselves.
The information mechanism provided for in Article 13 makes it possible to respond to this anxiety and legitimate needs. The information collected by the belligerent and therefore the form he fills in are transmitted to the ICRC's intelligence office. This intelligence office is not regulated in the first convention because it has general functions as a prisoner of war, it does not only concern the wounded and sick, but all prisoners of war and is therefore regulated in the third Geneva convention in Article 122. Article 16 of the first refers to it.
The intelligence office therefore receives the information and transmits it to the original power, that is, to the power of nationality of the wounded, soldier or military personnel involved. This is also how death certificates are exchanged, because it happens that wounded and sick people die, it also happens that healthy prisoners of war die, but even more often that wounded and sick people die and at that moment, Article 16§4, this information is exchanged which is no less important for relatives. Very often we will say, in the event of kidnapping or an attack, during armed conflicts, we see these people on television who say that the worst thing is not to know.
Convention II[edit | edit source]
The Second Geneva Convention protects soldiers, therefore military personnel, so we are in the same hypothesis as in the First Convention, but the theatre of war is no longer the same, we are now in the maritime field. This time, those to be protected are the wounded, sick or shipwrecked.
Convention II is also a relatively compact convention, very similar to the first convention in terms of structure, type of content and length to the first convention, with about forty articles. It's not much. But of course, the ways in which care can be provided and the wounded and sick and shipwrecked are very different. On land, there is a plurality of possibilities to provide this care, to transport people, etc. At sea, there are very few of them. The wounded and sick are either kept on warships or sometimes evacuated by commercial ships, but this is only in emergencies. And then there is a place that is particularly important for the protection of hospital ships. The core of the second convention is the regulation of protection on hospital ships. For the rest, if wounded and sick are collected on a warship, the provisions on the care of these wounded and sick are quite similar with regard to the first convention.
Regulation of hospital ships[edit | edit source]
First of all, these hospital ships are immune to attack. The practice of the principle of immunity from attack is therefore found in article 22. So, this time, always articles from the second convention.
How do you commission a hospital ship? These are belligerent ships. They are put into service by notification to the opposing party at least ten days before the vessel's employment begins. This is an old rule, of course, we are in 1949 when it was adopted and its purpose is to ensure that we have enough time to prepare for the presence of the hospital ship, that is, that we are not surprised at the last moment by measures for which we would not have had any opportunity to prepare - Article 22.
The intermediary of communication, therefore of notification, may be the protective power if there is one, but very rarely does it exist. The last time there were any was in the Falkland Islands/Falkland war in 1982 or the ICRC. Of course, belligerents can also communicate these notifications directly to each other as long as they still have contacts. If this is not the case, it is necessary to go through a third party and the third party today, which is usually the ICRC. It did so already during the Vietnam War.
Thirdly, hospital ships can be visited and searched by belligerent warships and therefore by the opposing belligerent's warships. A belligerent does not necessarily control his hospital ships, he has other things to do. But the opposing party may be tempted to make such a control, such a visit already and then control on board - Article 31 - for a very obvious reason because it may suspect abuse, it may suspect that a hospital ship is also used to transport weapons and not only to provide care.
In the event of abuse on board the ship, the hospital ship can be seized, it becomes, as we say in the jargon of maritime warfare law, a "maritime capture". This means that the ship can be transported to the port of the belligerent sensor, which is rather unfortunate for the wounded and sick because if the hospital ship is no longer there, for those who would still be wounded and sick, they could not be collected and they risk being in the "gurgling", i.e. sinking into the sea, which is not obvious. To avoid this, there is an already relatively long-standing practice, which was adopted on the initiative of the ICRC even before the adoption of the Geneva Conventions, of placing neutral observers on these hospital ships, neutral observers approved by the two belligerents or more if necessary, and which attests to the proper use of the ship, i. e. the absence of abuse. It was during the First World War that this rule began to take off as the Germans accused a whole series of hospital ships of being abused and attacked them, which was obviously rather unfortunate.
This rule was then codified in Article 31 § 4 of the Convention, so that neutral observers are not rarely ICRC experts, i.e. the ICRC sends its own staff and has them approved by the belligerents. This was the case during the last Great Naval War, i. e. Malvine/Falkland.
When the hospital ship engages in hostile action, such as missile launches, it loses immunity exactly as a health zone would lose under the first convention. The rules are the same, here we need a prior warning, which is the domain of article 34.
Then, as in health zones, the hospital ship has the right to be armed for its own security and defence - Article 35 § 1 - It also happens at sea that ships are attacked, looted, sometimes called piracy and a hospital ship can protect itself against such misadventures. Since the handgun rule cannot be applied here and a ship may have heavier weapons, it is all the more important for the confidence of the belligerents to have neutral observers or to allow a closer visit or control according to the so-called rule.
Neutrals can also send hospital ships here. It is a service exactly as in the first convention to send a hospital ship to treat the wounded and sick without discrimination that is entirely compatible with neutrality, it even honours the neutral state rather than providing this humanitarian service. If a neutral state decides to send a hospital ship, it is obliged to place it under the direction of a party to the conflict, i.e. a belligerent - Article 25 - so there is at that moment the double flag rule: i.e. the state, the neutral hospital ship will fly the flag of a belligerent state and above its own flag - put by the protective emblems.
What is the purpose of this rule, which may seem surprising that a neutral State places its ship under the direction, i.e. under the operational command, of a party to the conflict, of a belligerent. You may feel that you can simply go with a hospital ship and place yourself where you want and place yourself near the battle zone or sail heavily armed warships with military operations where "it's no laughing matter", and you arrive as a neutral state without being informed of military movements because you are not informed, so you just get there, you place your hospital ship in the least opportune zone and you may suffer damage. We must therefore have the necessary information and for that we must collaborate at least with the belligerents who know where the combat zones are, who can say where we must stand; we must be close enough to hospital ships to be able to collect the sick and wounded, but not too close because otherwise we obstruct military operations, which is still unfortunate and puts us at risk. All this cannot be done from the outside. It is therefore necessary to be integrated into operations and this is only possible through cooperation with the belligerents and that is what we are aiming for by the fact that a belligerent can give orders to place the ship in a specific location. We understand that this is practical, it makes sense, we are not playing in a sandbox.
The ICRC can also charter a hospital ship under the same conditions, and will fly the ICRC flag at that time.
The protective emblems[edit | edit source]
Again, there are rules on protective emblems - Article 41 et seq. It is especially noticeable that the ship's hull is painted with the colours of the protective emblems, red cross or red crescent, as the case may be.
Medical vessels that do not meet the conditions to be a hospital ship[edit | edit source]
There may be medical ships that do not meet the conditions to be a hospital ship as defined here. A hospital ship is already a state ship, it is the ship of a belligerent or a neutral state. But of course, apart from the special status of the ICRC, there is nothing to prevent other charitable organisations such as Médecins sans frontières or anyone else from chartering ships with a medical aid mission.
However, these ships are not hospital ships, they do not comply with the regime of Convention II, but they are ships assigned to philanthropic missions according to the vocabulary of the 1907 Hague XI Convention, which provides in Article 4 for the immunity of these ships against attack. So it is basically civilian ships that are immune to attack, but they are not hospital ships, they are not subject to the entire hospital ship regime, including, moreover, no need to make a special notification ten days before, although it is nevertheless wise to notify the belligerents of our presence.
It may also happen, but this is a different case - Articles 24 and 25, Geneva Convention II - that States commission private vessels for medical assistance, i.e. as hospital ships. At that point, we are back in the convention regime.
So it doesn't matter that the ship is private at the base, if it has the commission of a State, that is, if a State requisitions it for its services, then it becomes a hospital ship under the provisions of the convention.
The Geneva Convention III: the protection of prisoners of war[edit | edit source]
This convention is already much longer on prisoners of war, protection of prisoners of war. The agreement contains 143 articles. She was beaten in length by a short head by the Fourth Civilian Convention.
First of all, we must ask ourselves who is a prisoner of war. The Third Geneva Convention protects prisoners of war. We are therefore in the international armed conflict.
Who is entitled to prisoner of war status?
There are three categories of persons who are entitled to prisoner of war or equivalent status. We will first talk about the two less important categories numerically and also from a practical point of view to talk about the most important category last, because it will require more time for analysis.
First, some civilians are entitled to prisoner of war status. It is rather unusual for a civilian to be held in a prisoner of war camp and to enjoy the status of a prisoner of war as soon as he is held in a prisoner of war camp. But they are not just any civilians.
They are civilians with strong ties to the army in the sense that they perform functions, tasks or services useful to the army.
There are those categories of persons mentioned in Article 4 of Convention III at letter A and number 4 and 5: "persons who follow the armed forces without being directly part of them such as civilian members of military aircraft crews, war correspondents, suppliers, members of labour units or services responsible for the welfare of the armed forces...". Here are some examples of people who may be detained and who must be treated as prisoners of war at that time.
The most important question for us is why can these civilians be detained? If members of the armed forces do these tasks, we are no longer in the civilian category and we will have to analyze this later on in terms of members of the armed forces, which is another category that gives rise to prisoner of war status. But here, we assume that they are civilians and a "war correspondent", a vocabulary a little bit old, it is typically a civilian person.
So why are we holding these people or why are we allowed to hold him? The answer is very simple, it is that these people render services to the army and therefore they are useful to the opposing belligerent and if they are captured, they must not be released because by not releasing them we prevent these people from continuing to render services to the opposing army.
One could say that this may be true for suppliers, members of work units, etc., but war correspondents who are at the bottom of journalists; the war correspondent sometimes knows sensitive information that they may have collected on the battlefield and it is sometimes in the interest of keeping them at least temporarily so that they cannot transmit what they may have witnessed to the opposing forces. The war correspondents targeted here are not journalists from Le Matin, du Temps, etc., who are completely free; these are civilians who can come and go as they please. War correspondents are the official correspondents here, so those who follow the army, the former war reporters of the kings.
If these persons are captured, they are entitled to prisoner of war status. Of course, it is possible to release them as well, you are not obliged to keep a war correspondent, you can release him. At that moment he is not a prisoner of war, he is free, he returns either to his lines or goes elsewhere.
The second category of people are in the military, we are getting closer to what is expected. Military personnel who, if captured, may also be guarded, but who are not prisoners of war, however, if captured and guarded by opposing forces, such persons shall be entitled to treatment at least as favourable as that accorded to prisoners of war. So they are people without status, they are not prisoners of war, but they are entitled to treatment at least as favourable, they are guaranteed treatment, they are denied status.
Again, one wonders why lawyers invent such complicated things as providing treatment without giving status, because if you gave status, there would automatically be treatment. It is always necessary to recall the fundamental principle in law, according to Professor Kolb, that nothing is done without reason. The distinction has meaning here and becomes more obvious when we look at the people who benefit from it. These are only two categories of persons with military status, namely, on the one hand, army medical and medical personnel and army religious personnel. This issue is further regulated in Article 33 of Convention III.
Why not give them a status? It is because these people can certainly be kept, we can perfectly well if we capture doctors from the opposing army to keep them and take them to the prisoner of war camp and tell them that they will take care of wounded and sick prisoners of war of their nationality; this has several advantages first of all to unload us, we do not need to call on our own doctors, we may need them elsewhere normally, when the war rages, the doctors are not numerous enough. Secondly, it also makes sense from a care point of view. It is much more useful for prisoners of war of a certain nationality and culture to be treated by doctors of their own nationality who first know their language, each doctor, even the worst of the worst, will say how important communication with the patient is, if we do not understand each other it is rather bad. Then, cultural understanding too, we may be used to certain drugs, certain treatments that doctors from a completely different culture are not familiar with. We must not necessarily think of the Franco-German war, we must sometimes think of the United States and Vietnam where there is really a distortion that is not only cultural, but a distortion from every point of view. So, it makes sense, we can keep these doctors.
Why not give them the status? That's because there's something special about it. Prisoners of war, the principle is that they can be kept until the end of the armed conflict and they should only be repatriated when the armed conflict ends, not before. This is not true for health, medical and religious personnel. You can only keep them as long as you need to use them. When you have more, that is, if you have supernumerary staff, you have captured too many, there is no more to do for them, you have to release them because the principle is that these people are useful, they must not remain idle. If you don't have any use for these people in your camp, you have to release them. That is why they are not prisoners of war, otherwise the general rule would be applicable, according to which one is not obliged to release such persons before the end of the armed conflict.
We could of course have made an exception later on by saying that these prisoners of war must be released, we have already made the exception upstream by putting them in a separate category.
Thirdly and finally, combatants, and this includes all persons who are members of the armed forces of a State, except those mentioned above, medical, medical or religious personnel, all of whom are considered to be combatants and combatants are entitled to prisoner of war status.
Applicability ratione personae: definition of the combatant[edit | edit source]
Who is a combatant in an international armed conflict? We have already touched on the issue without discussing it. We remember that, for the principle of distinction, we must distinguish between combatants on the one hand and civilians on the other, learning that we could only attack combatants and that we should not attack civilians directly.
For the principle of distinction, what we will see now is fundamental. Then, too, to know who is entitled to prisoner of war status as a combatant, of course, we must define the combatant.
There are three categories of persons who are combatants in an international armed conflict. The first category has already been mentioned, which is the most important, and that is the members of the armed forces. There are two other categories where civilians can become combatants if they meet certain conditions, i.e. civilians can change their status to combatants, but subject to conditions, at least with regard to the Geneva Conventions, in this case the third, extremely strict, because the IHL system does not like civilians who want to participate in armed conflicts, this is contrary to the systematic and above all it puts the principle of distinction in imminent danger.
These two other categories of people are people in mass levée and then people belonging to resistance movements, we also call them militias or volunteer corps. There are these two special categories of persons in Article 4.a§6 for mass lifting and § 2 for resistance movements.
Thus, a person who is a member of the regular armed forces of a State, either a person participating in a mass rally or a person belonging to a resistance movement under certain conditions, is a combatant. The three categories are obviously alternative, one person will not be one, two and three at a time.
Members of the regular armed forces of a State[edit | edit source]
These are all persons who are organically part of the army of a party to the conflict. As for who is part of the army, this is a matter of internal law and the internal organization of the State. He can incorporate whoever he wants into the army, he can have an army with a limited profession, he can have an army with a system in the Swiss sense of the term, namely a militia system where the citizen becomes a fighter when he is called to arms. A state may also incorporate bizarre groups into the army, paramilitary groups or other groups. It can incorporate even if it wishes private military companies and their personnel; normally we do not do so precisely, we prefer to outsource, but nothing prevents a State from saying that the personnel of such and such a private military company is incorporated for such and such armed conflict in the army, it can do so and these persons become regular members of the armed forces at that time. And according to the principle of effectiveness that has been learned about State responsibility, the same would apply to any other group that happens to act for the State's armed forces, for example because instructions have been given to it or because it is a de facto body (articles 4 and 8 on State responsibility on the double taxation agreement).
Very important because the term "combatant" can easily be misleading: are not simply combatants who have an effective mission to fight, who are therefore more likely to speak a little generically, in the infantry or in the artillery, but all members of the armed forces. So, for example, including Professor Kolb of the Military Justice Section, doing his unarmed service in the Armed Conflict Law Section of the Swiss Army. If Switzerland were in armed conflict and Professor Kolb were in service, then he would be a combatant from the point of view of the Geneva Conventions system, regardless of whether or not he has a combat mission.
What is important for the Geneva Convention system is that all persons who are organically part of the army, perform services for the army and therefore may want to keep them, and that secondly, all persons who are part of the army may also be called upon to fight, at almost everything, we could also take a weapon and fight, the opposing belligerent can prevent this by keeping in case of capture.
The police forces, on the other hand, are not part of the army, except for a few corps in states other than Switzerland that also have military functions, such as the gendarmerie in France and Belgium and the Carabinieri in Italy. These are not purely police forces, they are originally military forces that have acquired police functions. However, a state can perfectly well incorporate police forces into the army, i.e. give them military missions. He is then required to notify the opposing belligerent.
What has just been said is summarized in very brief terms in the first figure of Article 4.a.
It should be pointed out in passing that the non-recognition of a particular government or even a state cannot be taken as an argument to say that since it does not recognize that government or state, for it that state does not exist or that government does not exist, therefore the armed forces of that state or government do not exist, and therefore, even if these people are captured, they cannot be prisoners of war because the state or government in whose name they fight is not recognized. It is obvious that if this were the case, there would be a relatively serious gap in protection, the third figure in the same letter of the same article recalls that this argument cannot be advanced. This is all the more important because the States that wage war against each other are not rarely States that do not adore each other and therefore not rarely do not recognize each other. Let us take as a very simple example Israel and some of its neighbours, perhaps not Egypt because there are the Camp David agreements, but a small country in civil war since 2011 on the borders of Israel whose name begins with S and ends with a Y.
La levée en masse - Mass levy[edit | edit source]
The mass levy is a rather anecdotal category today although it may not be completely inapplicable, but it is a marginal case.
The mass levy, the term obviously comes from the Napoleonic wars and the French Revolution, so it is venerable. In the Geneva Convention system, in this case the third, it means that civilians who spontaneously take up arms when enemy forces approach, i.e. in the invasion phase, at the time of first contact, to defend the territory of the State to which they belong, will be considered as combatants.
Categories debated in the 19th century, but in favour of which a whole series of States have put pressure on Switzerland, but also Belgium, rather small States, are large armies of trades where the argument was that we must admit patriotic war in the oldest sense of the term, a peasant who sees the enemy advancing could spontaneously take up arms, fight, should not be considered a criminal, but in case of capture should enjoy the status of prisoner of war.
The conditions for mass levy are different from those for members of the armed forces. It will have been noted that for members of the armed forces, there are no conditions to be considered a combatant except to be a member of the armed forces, which is a question of fact and law that must be clarified according to the principles explained.
In the mass levée, it does not go so naturally, it takes a whole course to be recognized as a fighter in this case because the peasant who takes the fork to fight against the Prussians who arrived in 1870, it is first of all a civilian. And from him one would expect an abstention rather than a bellicose action. To transform him into a fighter, however, he is required to have had no time to organize himself, because obviously, if there is time to organize himself in the State's military forces, the need to take up arms spontaneously at the last moment of the invasion disappears and we could not justify that person, for example, not wearing a uniform and a distinctive sign. It is only necessity, that is, taking up arms at the last moment because one is surprised by the invasion that justifies a derogation from this rule.
In addition, mass levy only concerns the movement phase, i.e. the first contact during the invasion. We can fight against invading forces, precisely in the phase of military movement. In occupied territory, there is no mass raising. Moreover, and this is apparent from the number 6, the numbering in Article 4 is a little strange according to Professor Kolb.
It appears that there are two additional conditions, first of all these people must openly carry weapons of any kind, it can be a rifle, it can be a fork although today the fork is a little out of date. But, you have to carry these weapons openly. The fork, we cannot hide it, Professor Kolb not seeing where else; a weapon, we could hide it, that is, not carry it openly. And secondly, these people must respect the rules of the law of armed conflict. That is, if they commit war crimes, for example, they are not only punishable for having committed them, but the punishment is much more radical. This is because these people are no longer considered as combatants and should no longer be treated as prisoners of war. They remain civilians at that time and that means that if they are captured, they must be treated as civilians, but they can be prosecuted for the acts they have committed and they do not enjoy the same protections as prisoners of war under Convention III.
Why should we openly bear arms in this case, in the convention system? This criterion reappears in resistance movements and can be commented on at that time.
The resistance movements[edit | edit source]
Resistance movements, the second figure also refers to "militia" or "other volunteer corps", these are "armed groups" in a word.
Again, it is possible for civilians, this time especially in occupied territory, when there has been time to organize a little bit, the invasion and movement phase having ended, to organize themselves into an armed group to resist the occupying opposing forces.
To become combatants in such an armed group, we are in an international armed conflict, the conditions are even stricter than for mass levée because in mass levée, after all, right of necessity, certain exceptions had to be made and certain things allowed. But here, as far as resistance movements are concerned, there is time to get organized and we are no longer excused from taking liberties with regard to the strictest rules and the Geneva Convention is really radically strict in this area.
It requires that five conditions be met for a person, in these circumstances, to be able to claim to be a combatant. First of all, the group for which it is fighting, this resistance movement, must have an allegiance to a party to the conflict. Typically, this will be the party to the conflict whose territory has been occupied, whose government will sometimes be in exile, as in London, for example. The way of establishing this allegiance, i.e. the fact of belonging to a party to the conflict, is not governed in a formalist way. It is enough for a movement to claim this cause, to fight for it, and if there is a government in exile, it must recognize that this force represents the state in question. The case law is quite interesting from this point of view, post-World War II. It should simply be remembered that it is a matter of ensuring that the movement is linked to the state cause. The purpose of this criterion is not to be formalistic and to require that a notary has established, by notarial deed, contact between the group and the government in exile, for example, but rather to exclude criminal movements which, for the benefit of the situation of armed conflict, could be formed to claim benefits under the Geneva Convention. It often happens that in armed conflict in territories that have lost the legitimate sovereign, that are occupied by mafia, criminal or other movements, organize themselves and practice violence, the convention wanted to exclude them from the benefits of the Geneva Conventions, this seems self-evident. But, legally, it must be ensured and this is done through this membership criterion since these criminal groups act for private purposes, they do not act on behalf of the State and they are precisely not recognized as representing the State.
Secondly, these groups must be headed by a person responsible for their subordinates. In short, it is therefore the requirement of a responsible command. This group needs a military structure, this structure does not need to be as well established as that of the regular army. Here we find a criterion that is also typical of non-international armed conflict, common article 3. It's a matter of military discipline. The reason is the same as Article 3: it must be possible to ensure the application of the rules of the law of armed conflict and this can only be done if the group is structured in such a way as to be able to follow the rules of the law of armed conflict, which also requires a chain of command. If the commander orders certain things, it must be possible for them to pass and the troops to stick to them because if there is no valid chain of command and everyone does what they want, it is rather difficult to try to apply the rules of the law of armed conflict. Thirdly, we must have, and this is an individual criterion, that is to say, the individual person who claims to be a combatant must have a fixed and recognizable distinctive sign at a distance. We see all these conditions in the number 2 in the different letters a, b, c and d. The criterion of membership does not appear in the letters, it appears in the chapeau of Article 2 and therefore in the text through the words "belonging to a party to the conflict". Distinctive and recognizable sign at a distance. There are some comments to be made in this regard, but without a definitive answer. Let's start with the most important question: why a fixed sign at a distance?
It can obviously be a uniform, but normally it would be too much to ask to go that far. But then something equivalent. It is still necessary to be able to distinguish who is a combatant and who is a civilian in order to implement the principle of distinction. We must therefore ask someone who wants to be a fighter to be recognized as such. It is not for civilians to be recognized as civilians. By paraphrasing a postal advertisement in France, there was no civil writing on the civilian front.
The distinctive emblem shall take the place of this. Of course, it is important to know what it means to be "fixed and recognizable at a distance", because questions quickly lead to casuistry. By "fixed" we mean that it must be something that cannot be manipulated at will. If it were simply a cuff that could be removed, the risk of manipulation would be too great. Therefore, the cuff will still be admitted, and it will still be required to be sewn on the garment in question or on the garments in question. By "recognizable from a distance", it means that it must be visible, otherwise the distinction cannot be made. It has to be visible, but what is visible from a distance? How far away? This also depends, of course, on the armed conflict. If we fight in the jungle as with the situation in Vietnam, it's even different. This quickly leads to casuistry. Professor Kolb is not going to give a general answer. It is also obvious that fighters should not make themselves recognizable too easily as in the First World War and the French army with red clothes that the Germans were able to pull very well. We can see that there are some rather interesting questions here. We see the meaning of the rule and we also see some of its difficulties.
We must bear arms openly. So, the same thing here as for the mass lifting: openly carrying arms. Why this condition? It is still the principle of distinction and it is also, in a sense, the idea of equality with the military. We want to play military, we want to become combatants, so we are in the same boat. The military openly carries arms, so it must also be done if we want the same privileges.
And finally and fifthly, and it should be noted that this is cumulative, all of them must be completed. In addition, the laws and customs of war must be respected in accordance with the vocabulary of the time, i.e. the rules of the law of armed conflict. Same as for mass lifting once again, what is the meaning of this rule? First of all, it is to provide an incentive to respect the law of armed conflict because it benefits us if we do so. Anything that does not exist in a non-international armed conflict, there is no benefit to respecting or not respecting IHL since one is criminal in all cases. In international armed conflict, there is an advantage in these cases and, of course, again, in a way, there is the idea of equality with the armed forces, which are also obliged to respect the conventions that their State has ratified and the applicable customary law. But it is above all the idea of incentive.
We must come back to this and question it from a certain point of view. Before doing so, having now presented the three categories of combatants, there is an additional remark to be made here that is important. We see that for the IHL system and in particular Convention III, there are only regular combatants, because combatants and civilians are two adjoining categories, as we have already seen when we discussed Additional Protocol I and analysed Article 50 § 1. There are combatants and civilians in the IHL system and there is nothing else, there is no third gender. We are either one or the other, which means that an irregular fighter does not exist for the law of armed conflict, because you can only be a fighter if you are regular, that is, if you meet the criteria. If you don't fill them out, you're no longer a fighter. An irregular fighter therefore makes no sense in the system, he is simply not a fighter at all. That is why if we do not say regular fighter, because that would be a pleonasm. Obviously, in political science, we would have to say "irregular" because it would not be clear, but in law it is a pleonasm. So, "irregular fighter", from the point of view of IHL, is a contradiction in terms, because if you are irregular, you are not a fighter, you cannot be both at the same time.
That the term is a legal monstrosity is only true for the international humanitarian law system. It must be internal, not necessarily. It may make sense to talk about irregular combatants, in American law or otherwise, because domestic law, which is an autonomous legal system, may perfectly well link specific consequences to what it defines as an irregular combatant. It should simply be noted that for IHL, the term does not make sense and it is therefore necessary to speak only of combatants or civilians, for that matter.
Therefore, the irregular fighter is simply a civilian who participates in hostilities. But, he remains a civilian who loses certain privileges. The system is perfectly well established like that, we do not need other categories and we are not unrealistic either, because we have the category of civilians taking a direct part in hostilities.
We remember that the vast majority of us are located in occupied territories, and so some people organize themselves into a resistance movement to fight the occupying forces and so that these people who participate can be combatants, we ask them for conditions that, on closer inspection, are still unusual in an occupied territory. A fixed and recognizable distinctive sign must be worn at a distance.
The conditions set out are so strict that they can certainly be applied when there are resistance movements in occupied territory that control part of the territory. This was the case in Yugoslavia, finally in Serbia at the time, in Greece, which, as we know, shares with Switzerland, the fact of having mountainous regions that the Germans did not control and therefore that the partisans as they called them there withdrew to these areas and at that moment it became realistic. We control a region and we can therefore sit in it, put on uniforms and conduct guerrilla operations if we meet these conditions. But if this territory is occupied in the narrow sense of the term, with the presence of the occupying forces as in Paris during the Second World War, then it does not work.
More generally than the situation of the Second World War, these conditions will not work, will not in fact be practically applicable in every case where the war is too asymmetrical and therefore we need to resort to guerrilla tactics for the weaker part. That is, you have to hide among civilians or maybe in the jungle, depending on the circumstances again, you go out at the last moment, hit the opposing forces and run and hide again in the jungle, among civilians, as the case may be. In this case, these conditions cannot be applied and exactly this has happened in the wars of decolonization, where there were situations of great asymmetry and where it was impossible for peoples fighting for their independence to meet these criteria with a deleterious result, which is that if we assume that these conflicts are international armed conflicts, which is what Additional Protocol I does, moreover, in Article 1§4, the practical result is that a party to the conflict, the colonial state in this case, who proceeds through regular armed forces and therefore automatically fulfils all the conditions would still have the right to have his or her combatants treated as prisoners of war and that the other belligerent party, in this case the peoples fighting for their independence, could never claim that one of their "combatants" could enjoy the status of prisoner of war if they were captured because they would never fulfil these conditions, which are those of armed groups. As a result, the belligerents are almost totally unequal before the law of war in terms of prisoners of war, one party would still have the right to have its members treated as prisoners of war, that is, well, and the other party would never have the right to do so, its prisoners of war could even be sentenced to death, shot, treated in any case completely outside the Geneva Convention system; that this does not work well in practice is obvious and that it was therefore easy to understand that a reform in this respect was just as easy to imagine. This reform was carried out in Additional Protocol I, which was one of the main aims of Additional Protocol I, rather than addressing the issue of reform of combatant status in asymmetric wars, i.e. wars in which a party to the conflict is forced to resort to guerrilla tactics.
How was this reform carried out? What reforms does the Additional Protocol propose?
The protocol generally takes up the question of members of the armed forces and combatants, it contains some interesting additions in Article 43, and the most important reforms on the problem mentioned are found in Article 44, which is one of the most controversial of the protocol as a whole.
The reform covers the following points. This is a legal reform, meaning that the conditions presented for combatant status as set out in the Geneva Convention III in Article 4 continue to apply. They are only amended where the Protocol contains incompatible regulations that prevail under the lex posterior between the parties to Additional Protocol I. It is also clear that these reforms are not customary law since a whole series of States, and not the least, are still strongly opposed to them.
The reforms cover the following points, there are three of them in summary form. The first reform, the failure of a person participating in an armed group to comply with the law of armed conflict, is no longer a condition for enjoying prisoner of war status, i. e. for being recognized as a combatant. In short, non-compliance with the law of armed conflict now has no impact on status.
Non-compliance with the law of armed conflict no longer has any impact, thus eliminating discrimination that existed in relation to members of the regular armed forces, because it is quite obvious in law that a member of the regular armed forces of a State may loot, rape, kill, i. e. commit as many violations of the law of armed conflict as he wishes, but he does not lose its status, i. e. the right to be treated as a prisoner of war. The only legal consequence it faces is criminal prosecution for the acts it has committed. From now on, members of armed groups have the same fate. This makes sense, not only in terms of non-discrimination, but also in terms of the practicality of the rule, because it was still a loophole that was too good for States not to abuse it or try to abuse it. Closing it again is probably welcome.
The second reform, the fixed distinctive sign is recognizable at a distance, must no longer be worn in all cases, it can be dispensed with when circumstances so require, i.e. when one is in a situation where one cannot as an asymmetrical war or when one cannot resort to guerrilla warfare - 44§ 3. The question of non-compliance with the law of armed conflict which no longer has any impact is 44§ 2.
« combattants sont tenus de se distinguer de la population civile lorsqu’ils prennent part à une attaque ou à une opération militaire préparatoire d’une attaque. Étant donné, toutefois, qu’il y a des situations dans les conflits armés où, en raison de la nature des hostilités, un combattant armé ne peut se distinguer de la population civile, il conserve son statut de combattant ».
At that time, it is not necessary to distinguish oneself according to the fixed and recognizable sign.
What takes the place of it? The only thing left is the open bearing of weapons. But here too, however, it is no longer possible to demand an open port at all times and therefore restricts the time in which the person must openly carry arms. He must wear them openly as stated in paragraph 3 during each military engagement, i.e. at the time of combat and therefore cumulatively during the time he is exposed to the view of the adversary while taking part in a military deployment preceding the launch of an attack in which he must participate.
When, therefore, the person takes a position on the last place from which the attack must be launched and insofar as it is within sight of the opponent, he is obliged to carry the weapons openly, he cannot hide them, this is what makes it possible to distinguish them from a simple civilian. The visibility in question here has always been interpreted as visibility with the naked eye, let us say with normal uncorrected vision, it also means of course with glasses if you are short-sighted as Professor Kolb is, but without a sight improvement instrument as a twin and even worse, a satellite with an image that you receive on your phone or other device because at that moment, all the worlds are still visible. If we could improve our eyesight, we would always have to carry arms openly because we would always be visible to the opponent. So it's only normal visibility. The open carrying of weapons is not required if it cannot be seen by the opponent because at that time, the open carrying of weapons would not be useful. If we are in the middle of the jungle and it is only the bear and hippopotamus who can see us, then Professor Kolb doesn't know if they necessarily want to see the weapons. Nevertheless, this obviously gives rise to certain margins of interpretation that can be unfortunate. We can try to argue that we were not visible.
These are the rules. It is still a much reduced time frame, you can only carry weapons openly at the last moment to speak in a very small generic way: you strike and then you disperse again in nature. Moreover, after the attack, we can get rid of the weapons and simply flee, we no longer need to carry weapons openly, we simply flee after the attack, it is in the deployment that we must go in the direction indicated openly.
The third reform is article 44. This provision is surprising. It applies to the case referred to in paragraph 3, i.e. cases where persons cannot distinguish themselves according to traditional material because there is a situation of asymmetry and guerrilla warfare. It is stated here that "Any combatant who falls into the power of an adverse Party, while not fulfilling the conditions provided for in the second sentence of paragraph 3, loses his right to be considered a prisoner of war, but nevertheless enjoys protections equivalent in all respects to those granted to prisoners of war by the Third Convention and by this Protocol....". In general, the person no longer has the status of a prisoner of war, but retains the treatment.
This may come as a surprise because we can say that we are very generous, that we are very humanitarian at the limit and that we give priority to guerrillas because they, if they do not always respect the conditions, can be treated as prisoners of war while others may no longer be treated at all in the traditional Geneva convention system. This rule obviously has a humanitarian scope. It was inserted for that reason too, but it was not inserted only for that reason and perhaps not even in the first place for that reason. This is interesting because Article 44§4 is one of these provisions whose true meaning is most often misunderstood; rather, let us say the true reason.
The real reason was quite simply the interest of the belligerents, it was the interest of the belligerents that caused this provision to be inserted even before the humanitarian interest, and you have to know a little bit about practice to see it because when you are only academics at the age of twenty, you can't grasp such things.
This provision was invented during the French war in Algeria, the war of independence, and then applied a little bit more by the Americans in Vietnam. The problem is very simple. What is being done on the part of opposing combatants, by assumption in an international armed conflict who do not meet the conditions to be recognized as combatants and now they know that if they surrender, they are not considered as combatants, all the acts they have committed are crimes and that if they do not torture or otherwise ill-treat them, they will be shot. Let us now put ourselves in the shoes of these people. We are a guerrilla and we know that if we surrender, we will proclaim to have a harmful treatment and in addition we will have the choice between the scaffold and the execution by a salvo. Are we going to surrender? The professor doesn't believe it. Therefore, in order to induce these people to surrender, which is in the interest of a belligerent, it is interesting for him, to tell this belligerent that even if he does not like them, if he does not at least offer them treatment, not to treat them as prisoners of war by not granting them the status, but to guarantee them proper treatment, to treat them at least as prisoners of war because this will make it easier to capture them, otherwise they will not surrender, they will fight to the end. The belligerents did so, the French accepted this regulation in Algeria, they tried it, the Americans tried it; that is where 44§ 4 comes from.
The appearance is not always the right one. Of course it's humanitarian too, we're making that too and we're happy with it. But the main purpose of 44§ 4 was to allow the surrender of the persons concerned, i. e. to serve the belligerent in the armed conflict of the belligerent who is fighting against that person in an armed conflict.
These are the three reforms.
The protocol has been criticized for opening the door too generously to terrorist practices. This has been said in the United States, it has been said in Israel and some other states have also used these arguments. Professor Kolb does not believe that this criticism is entirely adequate except already that the term terrorism is an extremely politically charged term. Anyone who uses violence contrary to their interests is tend to be called a terrorist. It is obvious that the resistance fighters were terrorists for the Germans, and they described them as such.
But here, according to Professor Kolb, the term is not really appropriate for a variety of reasons. First of all, because Additional Protocol I only applies to international armed conflicts and therefore we are here in the cases that we almost always consider in occupied territories, which are nevertheless particular strong situations. That, in addition, these movements must have a formal link with a party to the conflict as in Article 4 of the Geneva Convention, this continues to be applicable, is it not so, the protocol has not changed this criterion of membership. In addition, the protocol prohibits terror, IHL is applicable and therefore the principle of distinction is fully applicable. That therefore, guerrillas, only opposing armed groups and nothing else can be hit. If civilians and the military are attacked indiscriminately by placing bombs on marketplaces or launching missiles on marketplaces, we can continue to be considered a terrorist, and moreover be condemned for our actions, they are still crimes, as the applicable IHL requires us to make a distinction. Therefore, we do not allow so much terrorism, what we do is rather that we allow guerrillas to a certain extent, which of course those against whom they are directed do not like. But it is simply a matter of realism, because if we do not do it, it simply means that the rights of prisoners of war are collapsing. We cannot have a prisoner of war right where one party would always be entitled to receive all the benefits and other parties would never be entitled to receive the benefits because on the one hand there are always fighters and on the other hand there are never fighters. It is practically impossible or in other words, it is impracticable and the protocol is dated.
However, to date, this regime has only been conventional, it unfortunately applies between parties to the Protocol, but this has not yet broken through in general law because important States are not in favour of regulating the Protocol.
Special categories of persons[edit | edit source]
The deserter[edit | edit source]
The deserter has no special status in the IHL system. If captured by the opposing party, he is entitled to prisoner of war status because he is a member of the armed forces. However, since he is a deserter, the opposing party may consider that he is not dangerous for him and that he can be treated better or even released. But if he is captured, kept in control of the opposing power, he must be recognized in his status as a prisoner of war. Of course, the deserter is liable to criminal prosecution in his State of origin for desertion, but this is a matter of domestic military law and has nothing to do with IHL.
The traitor[edit | edit source]
The traitor is also a category as such non-existent in IHL. The traitor will not be incarcerated, that is, treated as a prisoner of war by the party to the conflict for whom he has worked because it is precisely that party that considers him its own agent. The traitor only risks something in relation to his state of origin that he has betrayed. Here, the rule is very simple. The State of origin is not obliged to grant him prisoner of war status. He may consider it as one of his own nationals to whom his criminal code is fully applicable, so that the death penalty may also be applicable. Even in States that have abolished the death penalty, it is sometimes still applicable in the military code and is applicable at that time, especially in this case: treason in time of war.
The spy[edit | edit source]
The spy is a category of interest to IHL because is a spy captured by opposing forces, a spy in the armed conflict, a spy for the opposing belligerent, has the right to prisoner of war status if he is captured. The answer can be found in Article 46 of Additional Protocol I. This article has many assumptions, but it is in fact very simple, because the fundamentally applicable principle is whether the spy is captured with a uniform or without a uniform, i.e. distinctive sign or not. If captured in uniform, he is entitled to prisoner of war status, if captured without uniform, he is not entitled to it and remains a civilian at that time.
The mercenary[edit | edit source]
The category of mercenary is also of interest to the DH, it is a very bad regulation, according to Professor Kolb, but it is nevertheless regulated in Article 47 of Additional Protocol I. In the sense that a party to the conflict may refuse the status of prisoner of war for a mercenary, the mercenary no longer has much sympathy in the 20th century, obviously, fighting for causes, especially to oppress peoples who aspire to freedom simply because they are paid, this is not very sympathetic.
Nevertheless, the regulation of the protocol and convention on mercenaries, the protocol to Article 47, is seriously flawed. It is seriously flawed because the conditions to be recognized as a mercenary are so strict that you have to be "slightly crazy" to be caught as a mercenary. Because, for example, it is enough to incorporate someone into the army so that by definition they cannot be mercenary. So if you incorporate him into the army, he's never a mercenary. It is a relatively easy way to escape the rule when you want to. Secondly, in order for someone to be a mercenary, it must be proven that he or she was recruited in order to receive a material remuneration significantly higher than that of ordinary combatants. And so, he must be specially recruited. This must have been his motivation to earn significantly more. If it cannot be proven that this was the motivation for his special recruitment, the provision on mercenarism cannot be applied either. All this simply invites us to escape this rule almost every time.
We know that now with private military companies, the issue of mercenaries and back on the agenda and the Human Rights Council has appointed a special group to work on it.
Presumption[edit | edit source]
In case of doubt about the right of a person to receive prisoner of war status, that person must be provisionally treated as a prisoner of war or as a prisoner of war if the agreement is made with "person". In shorter terms, there is therefore a presumption of prisoner of war status. This presumption is found in Article 5§2 of the Geneva Convention III: "If there is doubt as to whether the persons who have committed an act of belligerency and who have fallen into enemy hands belong to one of the categories listed in Article 4, such persons shall enjoy the protection of this Convention until their status has been determined by a competent court". The applicability of the convention is therefore presumed, and people must therefore be treated as prisoners of war even if their status is not yet clear.
Why might the question be uncertain? For all reason, an ace of reason. If the criteria of the Geneva Convention are followed, it may be uncertain whether the person was wearing a fixed and recognizable distinctive sign at a distance. For example, it may be uncertain whether it has respected the law of armed conflict. It may even be uncertain whether she was a member of the armed forces, whether she was wearing a uniform or not during the spying. These are factual issues that may give rise to doubts in individual cases. In these cases of doubt, it is therefore necessary to start by applying the convention and it is only when there has been a judgment, their status has been determined by a competent court, when there is a judgment that confirms or invalidates the right to prisoner of war status, that we will be definitively determined. If the judgment overturns the status, that is, determines that the person was not entitled to it, he or she can be no longer treated as a prisoner of war from the time of the judgment. This presumption is further reinforced in Additional Protocol I to Article 45 § 1 and § 2, and Article 45 further emphasises that this presumption is automatically linked either to the notification of the original power or to the claim of the person concerned. So, if we capture a person and his or her state of origin says that it is one of his or her combatants, that is enough to create a case of doubt at the very least and to have to apply the convention. Similarly, you are captured, you are said to be a fighter of State X or Y for example, that is enough to make the presumption work.
It is therefore very generous this presumption and makes sense, because if a case of doubt could be invoked to the contrary, i.e. not to grant treatment, it would allow a belligerent party to open protection gaps that are nevertheless very serious, i.e. to deny people a status to which they may be entitled, a protective status to which they may be entitled, and it would even be in her interest to do so as long as possible, that is, let us imagine that, if we have the opposite rule, we do not need to recognize the treatment of a prisoner of war until a court has decided the matter, then it is simply in her interest to procrastinate as much as possible, to tell the court to take her time because as long as she has not judged we can afford not to treat the person according to Convention III.
The opposite distribution makes much more sense, it does not open a protection gap and it also makes it possible to accelerate proceedings because the belligerent this time has a better interest in the court being able to decide the matter within a reasonable time.
Obviously, there are loopholes even in this case. A belligerent might be tempted to say that there is no doubt about a person's status and therefore he or she is not granted prisoner of war status, because Article 5 only applies in cases of doubt. Obviously, the Additional Protocol reinforces this presumption by saying that there is automatically doubt in both cases mentioned. But the protocol rule is obviously only a rule of the protocol, not customary, and not all states have ratified the protocol, while virtually all states have ratified the Geneva Convention, and it is the United States that made this argument during interventions in Afghanistan in particular and Iraq. There is no doubt that the person does not meet the conditions and therefore is not granted status. The United States is not bound by Additional Protocol I. Professor Kolb points out that in the past, the United States was much more liberal, in the Vietnam War, it immediately recognized people as prisoners of war even if they did not meet the conditions. Other time, other regime, other president, other ideological context, but still the Viet Cong were not very friendly either, the communists in other words; the context was different simply by the fact that there were also a whole series of American prisoners of war in Vietnamese hands and that consequently there was a certain motivation to be generous through reciprocity, if we treat theirs well, they will perhaps treat mine a little better. In Afghanistan, as we know, there were no American prisoners of war detained. The main reasons, moreover, were that the Americans never came into direct contact with opposing forces, they always put local forces before their lines, in the first line there were the locals so they fought in the second line or in perfectly secure operations, especially in the air.
A few more brief remarks before we get to the protection regime.
First, when you have prisoner of war status, you keep it until you are released, including not losing your status by transfer. If we are transferred to another power, the transferring state must ensure that the power to which they transfer will recognize us as a prisoner of war and apply Convention III, Article 12. Moreover, there is an analogous rule for civilians in the Geneva Convention IV in Article 45.
Then, it is possible to intern prisoners of war in a neutral state, i. e. to transfer them to a neutral state. A neutral state can receive prisoners of war from a conflict to which it is obviously not a party because it is neutral, it can receive these prisoners on its territory, it is a service it provides to the belligerent, but it is a big service it provides first to the belligerent and then to the prisoners. First, it does the belligerent a service because it unloads them, it is expensive to have prisoners of war, especially in large numbers. During the war, it happens that food is just in the sense of counting, in Switzerland there was rationing, in Strike, the country of Professor Kolb's mother's country, people would die by the thousands because they had nothing to eat at all, especially in the winters of 1943 and 1944, which are still fatal memories. Having to feed tens or even hundreds of thousands of prisoners of war is not insignificant, so receiving these people in neutral territories is an outstanding service. It is also a service rendered to prisoners because obviously they are no longer held in a context of hostility, if one arrives in Switzerland, there is no hostile contact with the detaining forces and there are therefore often lighter detention conditions. During the First World War, there were the Poles who built the hiking trails in Ticino, they used to take care of it. It is better than being in a prisoner of war camp and this trail near the Centovalli still bears their name today, it is the Poles' trail. It is Article 111 of Convention III that provides for this transfer to neutral territory.
Finally, prisoners of war must be detained on land - Article 22 § 1 - and if they are captured at sea, they must be transferred as soon as possible to land. This rule is the result of certain abuses, even during the Napoleonic wars when people disappeared when they were detained at sea. Sometimes, this rule could have caused some problems during the Falkland Islands/Falkland War in 1982, it turned out relatively quickly that prisoners could not be kept on the Falkland Islands/Falkland because there was no detention centre and because, to put it bluntly, people froze their buttocks relatively quickly in these inhospitable lands, there were not enough blankets and so on, and that therefore, the safest and most comfortable place of detention was at the bottom on board ships, except that Convention III prohibited it and it was by a particular agreement, a little complicated, not obvious, because protected persons cannot waive their guarantee, but under the guidance of the ICRC, it was accepted that these persons should be transferred to ships. This rule can sometimes even be overridden when the good of protected persons in a teleological interpretation so requires.
Rules of protection[edit | edit source]
It is now time to discuss the protection regime. There are prisoners of war who are normally held in prisoner of war camps, what are the guarantees or, more generally speaking, what are the applicable rules?
There is obviously a whole series of them, and Professor Kolb has been working on them since about 2009, having interviewed all the ICRC delegates who have been in conflict and who have kindly agreed to meet him to interview them. Professor Kolb conducted research on Convention III since there was nothing on the protection regime.
That is why Professor Kolb is not going to try to summarize the book he wrote with Catherine Maia, it would lead him on steep slopes that want to say too much. He will simply make some remarks without further ado. There's one of a hundred articles.
The fundamental rule on the protection of prisoners and humane treatment is found here in Article 13. This is probably the most important provision. Article 13 and therefore the key article. And then, questions of human treatment also appear in the following articles up to Article 16. Block 13 to 16, we can say that it is the "human treatment" block in the general sense.
So what does that mean? This means a whole host of things noted in these provisions, such as, for example, respect for the individual and in particular for women with regard to their sex in the vocabulary of the time in article 14, and in paragraph 2. Prisoners of war sometimes booed by the crowd as well as sometimes lynched by the crowd as we have had recurrent cases in the past.
A modern discussion of this rule has taken place in many recent conflicts, starting with the 1991 Kuwait liberation conflict, where there was the practice of showing prisoners of war on television with bruises, the prostrate mine that was making is sometimes a little confusing when they made one and they were being filmed. This is directly contrary to the rule we have just said, it is to expose these prisoners of war to public curiosity in a generally very unfavourable position. It's about humiliating them in other words.
The image is always more and more important. Obviously, it is not a question of prohibiting journalists from showing it, that is something else. It is that rather these people, the detaining power must not expose them.
Then there is the equal treatment rule. It can be subsumed under human treatment and taken separately, regardless, that is the purpose of section 16.
Then there are rules on the capture of prisoners of war. The most important rule in this regard is contained in article 17 on the interrogation of the prisoner. The first paragraph states what the prisoner of war owes as information to the power that captures him and therefore, on the contrary, what he does not owe. What he must do is declare his first and last name, rank, date of birth and personnel number. Article 17§1 is there to compensate for any omissions. On the other hand, a prisoner of war must not provide any additional information, and in particular he must not provide any information on the conduct of the military operations in which he participated at the time he was captured.
Why doesn't he have to provide this additional information? This is quite obvious. The prisoner of war is not forced to betray his comrades or the power in whose name he is fighting. He can therefore remain silent in this regard and would not be questioned. If he wants to talk, he can, but simply, he is not required to say more. This information that it is required to provide will then be recorded in a catch card that is sent to the information office according to the mechanism mentioned above for the First and Second Geneva Conventions. This is a procedure taken relatively quickly and in Article 70.
In practice, it has happened that belligerents have dragged their feet in the preparation of these maps and in their transmission because the number of prisoners taken in a short period of time has been so massive that it has been impossible to act quickly: out of stock of capture card, difficulty in transcribing Arabic names from people who have no idea how it works; This already happened to the Americans during the war for the liberation of Kuwait when masses of not very motivated Iraqi soldiers surrendered and the Americans, not having foreseen it, very often they did not foresee things, did not have any more catch cards, it took weeks for others to arrive and then they often made mistakes on the Arabic names with many mistakes that needed the ICRC's help to solve all this. By the way, these are some of the practical aspects that Professor Kolb may have witnessed, not directly, but through interviews he may have held or the literature he has studied.
There is then a rule on non-exposure to danger. Prisoners of war must be transferred as soon as possible from the dangerous areas where they would have been captured, where they would initially be detained and housed in a safe place. This can and will, as a general rule, be the prisoner of war camp intended to receive them provisionally and definitively with a small contradiction in the most sympathetic terms.
Depending on the circumstances, transfer is not always possible. If the areas are under massive bombardment, it may not be possible to evacuate immediately, so the circumstances of the case must be taken into account. The place to which the prisoners are ultimately transferred must be marked and should not be near military objectives. It must be marked with the letters PW or PG - these are the two languages of the agreement with PW to prisonner of war and PG to prisoner of war; articles 12, 20 and 23 deal with these issues. The aim is that these camps should not be targeted by the opposing belligerent that they are military camps; they are simply military camps, it would be useful for him to know that it may be his own men who are there and that he is not bombarding them. It would still be unfortunate if it were not so.
In practice, one of the problems with transfer is that, as we always think in the West, we do not see the practical problems, in third world countries sometimes there are no means of transport and therefore prisoners of war are captured somewhere and then we have to "hit" three hundred kilometres on foot to get to the camp. The problem here is therefore a transfer problem under appropriate conditions, especially since shoes are often removed from people with the motivation to prevent them from fleeing. If you have a large number of prisoners to transfer and they have good shoes, you may be more afraid of escapes than when you remove the shoes. On the other hand, sometimes, however, shoes and bullying can also be removed, particularly with regard to Westerners. Especially in Vietnam because obviously these people know that we have relatively sensitive feet as we usually wear shoes we are no longer accustomed and our skin has disappeared, we no longer have corneas on our feet and therefore walk for hours after that makes terrible injuries and it becomes downright bullying. But here it is, it is a question that jurisprudence has always had to consider; Eritrea-Ethiopia, Arbitration Commission, it is one of the questions to know what to do with these transfers running in the desert sometimes for a long time by sometimes removing people's shoes, it can be in the sand of the desert quite a little problematic when it is fifty degrees and the ground is about eighty degrees, we step on it; if you have very thickened skin maybe and in other cases it may be a little less pleasant.
Prisoners of war are subject to military discipline, i.e. when they are detained in a prisoner of war camp, they continue to be in their military service. They are therefore placed under the orders of their officers and are bound by all other military duties, including the duty of salvation and respect. Prisoners may keep their uniforms and wear the insignia of their rank - Article 40 - It is specified in Article 43 of Convention IV that officers shall be treated with respect due to their rank and there are specific rules detailed in Convention III on who shall salute who, thus, officers shall salute only senior officers of the detaining power, but in any case the commander of the prison camp - Article 39 § 3. These rules are not of great importance, it is true, but it shows that the prisoner of war camp is a structured whole and that we are still relatively far from the Mediterranean Club or other similar institutions.
There are then detailed rules on the work of prisoners of war. Too detailed for Professor Kolb to be able to explain them in the detail they deserve. These rules are found in Convention III in Articles 49 et seq. - Section III, Prisoner of War Labour.
By going to the heart of the matter, what must be noted in these provisions and that, first of all, prisoners of war can be forced to work. The same is not true for officers - article 49.
What work is allowed? These works are exhaustively listed in Article 50, whereas the Convention specifically prohibits certain works, which is the purpose of Article 52, dangerous or humiliating works. Looking at provisions 50 and 52, it becomes clear that the main objective of article 50, which authorizes certain types of work, is to ensure that the prisoner cannot be forced to do work that would involve treason. In other words, he must not do any work that would run counter to the interests of the original power, of his State. In particular, nothing that could support the military effort of the detaining power. But there are borderline cases that are difficult to decide by the criteria of the convention, because prisoners of war could perfectly well be used to repair roads that have been bombed, and it could be uncertain what these roads will do if they are used to transport wounded civilians, there is no doubt that we are in a job that should be asked of prisoners; if these roads were also used for military transport, the question may become more dubious, but probably the most important thing at that time is that the work is not specifically done to support the war effort. If roads are only used for military transport, prisoners of war should not be asked to contribute to this work. But it's subtle despite everything.
As for Article 52, it refers to other types of work that benefit the detaining power to the detriment of the original power, namely dangerous or humiliating work. It should be noted that in this case, the convention makes an exception, because it says at the beginning of Article 52 "unless it is voluntary, no prisoner of war may be employed in work of an unhealthy or dangerous nature". In any case, for unhealthy or dangerous work, a prisoner could volunteer. A typically dangerous job is mine clearance.
From a legal point of view, this provision of Article 52§1, which gives way to the will of the prisoner of war, is a lex speciali which derogates within Convention III itself from the general provision contained in Article 7. Convention IV also contains a similar provision, all conventions contain one. Article 7 states that prisoners of war may under no circumstances waive in whole or in part the right conferred on them by this Convention and, where appropriate, by the special agreements referred to in the preceding article. So you can't give up the protections even if you want to. But Article 52 specifies that in the case of unhealthy or dangerous work, it is possible to give up. And so, here, it is a lex speciali that makes an exception to Article 7. If there were no such lex speciali in Article 7, it would prevail and the prisoner could not consent to this work. Why does it consent? The reasons can be quite personal. Generally, he consents because he finds an advantage, he is promised a better detention regime or they pay.
When prisoners of war are working, the convention requires that they be paid adequate pay - Articles 54 and 62. Subsequent practice, i. e. post-1949, considerably weakened these provisions. First of all, the compensation provided for in Article 62 is no longer appropriate, a fair compensation of course, but for the rest, when it is said that it must not be less than a quarter of a Swiss franc as a reference unit, what was relevant in 1949 is no longer so today. Nevertheless, having researched quite carefully in practice, Professor Kolb realized that in a whole series of situations, prisoners were not paid for work without this having given rise to protests from States to the Geneva Convention III, so it is uncertain to what extent these provisions persist even though Eritrea-Ethiopia case law has referred to them as black letter law, applicable provision, but doubts remain. In any case, in the agreement a payment is required, in reality these payments often do not take place. Despite everything, it is relatively difficult to see Eritrea and Ethiopia, which are in a situation of armed conflict and whose State coffers are not as richly endowed as they sometimes are in Switzerland and were in the past in particular in Switzerland, still paying compensation to prisoners of war. If this is found, in a fraction of a Swiss franc, with the strong Swiss franc, it is a little unrealistic in the modern world. Professor Kolb did not find many cases where prisoners were paid.
Then there is another area, property. Prisoners of war may keep their personal property except for certain items such as vehicles of course, weapons, military equipment and in many cases also valuables. In particular, valuables are often seized and deposited against a receipt. These objects remained at the time of the prisoner's release. The reason why weapons are not allowed in the prisoner of war camp, for prisoners, seems quite obvious and does not seem to require further explanation.
As far as values are concerned, the reason is simply the tranquility and security of the camp. If there are many men and sometimes even a few women now in prisoner of war camps, there may be tens of thousands of them, we want to avoid that there are values that are treated because they can lead to theft, fighting and therefore insecurity, we want to avoid this kind of misadventure. The prisoner of war camp is not a five-star room at the Hilton Hotel where there is a safe for each prisoner of war where he can put his most precious belongings. The safe exists, but it may be in the commander's office or elsewhere, that's where we record things as we enter the camp. What matters is that a receipt is given and that when the prisoner is repatriated, these items must be returned, including the personal weapon that was removed from him when he entered the camp.
Prisoners of war may receive mail, in particular individual parcels sent to them either by their families or by the ICRC - Article 71. When you are in a prisoner of war camp and sometimes isolated from the outside world for perhaps even years, contact with the outside world and receiving a package with food that may be from your country, Swiss chocolate or books to which you are attached are things that are of absolutely immeasurable importance and if you read the memories of prisoners of war, they insist on each and every one of them how important these packages would sometimes be for themselves to avoid falling into depression.
It is not so common for prisoners of war to work. The much more cruel problem for prisoners of war in recent decades was that they were not forced to work or only very little. In Ethiopia - Eritrea, they built barracks in which they were subsequently detained. After that, you are not forced to work, but what do you do all day long, it's idleness, it's difficult, for a week you hold out, but then it becomes difficult. Here, these packages are even more important.
The remittances received by prisoners can also be remittances. They are entitled to receive money, the various provisions in this regard are found in Articles 58 et seq. of Convention III.
The representation of prisoners of war[edit | edit source]
As suggested a few minutes ago, it often happens that we have many prisoners in the same camp or on several camps. We need a link between these prisoners and the camp commanders, because as always when human beings meet together for a certain period of time for certain functions or situations, we need to be able to discuss and resolve mutual problems. The camp commander is a person, we know who to turn to, the prisoners of war are hundreds, thousands or even tens of thousands, we cannot discuss with ten thousand people in corpere. It is therefore necessary that these people have representatives who can contact the camp commander to resolve a whole series of practical issues and, if necessary, also to resolve complaints, concerns and problems encountered by prisoners.
In this respect, the agreement in Articles 79, 80 and 81 provides that the most senior officer in the highest rank shall be the prisoner of war, or in the absence of such an officer, the prisoner elected by prisoners of war by secret ballot shall be their representative. So it is either automatically the most senior officer in the highest rank, in the event that there is none, it can happen, you need a vote to appoint the representative.
This representative is called in English "prisoner of war representative", in the French text, the term is "homme de confiance". This text has not been revised since 1949, so we can imagine what it would look like today. For the time being, he is a "trusted man" and it is likely to remain so.
This trusted person or trusted persons are elected by each section of a prisoner of war, therefore by their nationality, and so on. This is specified in the fifth paragraph of Article 79. It goes without saying that each section must have its own representative. If we have prisoners of co-belligerents of different nationalities, we cannot have one that represents all of them because the interests can be divergent.
This trusted person must in principle be approved by the detaining power. It must therefore acknowledge this, it may refuse to do so, but the refusal must be justified. There is no tangible practice of refusal - Article 79 § 4 Professor Kolb has not found cases of refusal in practice, the detaining power obviously has no great interest in not recognising the person whom the prisoners would like to see as their representative. Reasons for refusal would obviously be mainly person-related reasons if the original power has all the reasons to believe that the person is not of sufficient neutrality to be the link between the camp commander and the prisoners. Neutrality refers to a person who is, for example, excessively aggressive or militant. But Professor Kolb has not found any cases in practice in this regard.
The tasks of the trusted person or trusted persons is to be the intermediary between the prisoners and the detaining power. In addition to this function, which therefore consists, for example, in telling the camp commander that there have been violations of the Geneva Convention, in requiring that a copy of Convention III be posted in the camp as provided for in the Convention, in talking about other things such as not having enough opportunities to have showers, so it smells bad in the dormitories, these are practical problems, often things of this kind, or that there is not enough food, the blankets are not enough because we are cold at night somewhere in the mountains. In addition to these intermediary tasks, the trustworthy person also takes care of the physical, spiritual and social well-being of the prisoners, i.e. he is also at their service, he is not only an intermediary, but he also takes care of people. It is also through him, for example, that the distribution of packages received by prisoners of war when they are not personal will be made. There are also collective mailings to prisoners of war and at that time the contents of the collective mailings must be delivered. The trustworthy person is called upon in this respect, he is the representative of the prisoners, he takes care of them and consequently, he also takes care of the distribution of these foodstuffs.
Articles 80 and 81 of Convention III provide us with more information on these functions of the trusted person. Professor Kolb assumes that if there were women prisoners today, it sometimes happens, they are trusted women.
The ICRC visits[edit | edit source]
With regard to Convention III, the relevant provision is found in Article 126 § 4, and there are also more detailed provisions in the ICRC Statutes in this respect.
For prisoners of war, it is essential to have links with the outside world and their most important link is that of the ICRC delegate who often visits them at regular intervals.
The ICRC delegate's first task is to ensure that the provisions of the convention are properly applied and also to be a channel of communication between the camp commander and the prisoners, as he also reports to the camp commander on what he can observe during the visits.
These visits take place roughly as follows. The ICRC delegate announced that there would be no unannounced visits to the prisoner of war camps. It would obviously be convenient to arrive, to knock on the door at any time without the camp and its leaders having had time to prepare and erase traces can be unpleasant, but it is not practically feasible in times of armed conflict. In areas of armed conflict, we cannot just walk around like that, knock on doors and say that we are there and that we must be opened up. All this must be organised, even if only for very basic security reasons.
So we announce ourselves for these visits. A date is agreed, the ICRC delegate then goes to the site. In principle, he will only visit the prisoner of war camp if he obtains a guarantee as soon as he announces that he will be guaranteed certain aspects of the conduct of the visit.
The most important aspects he will focus on are two others. First, it must ensure that the detaining power allows the ICRC delegate to conduct individual interviews with prisoners at his own discretionary discretion. In simpler terms, the delegate must be able to choose the person with whom he or she wishes to speak, excluding any presence of personnel from the holding power. We don't necessarily know who we want to talk to, maybe we observe some people who seem troubled to us, whose eyes betray emotions, tensions and we may want to talk to them. We must therefore obtain the guarantee that we can talk to whoever we want and alone with that person.
Secondly, the ICRC delegate must ensure that he or she can visit the entire camp again at his or her discretion. He can say in very simple terms that he wants to ask to open a door to see what's in there and the door must be open to him. If he does not obtain these guarantees of being able to visit all the places, places, rooms, annexes of the camp at his free choice or even the personalised interviews, then the ICRC as a whole and the delegate in particular obviously is in a dilemma. In principle, he must refuse to make the visit if these conditions are not fulfilled, because if they are not fulfilled, he could not accomplish his mission as planned and would risk becoming an accomplice of the detaining power unable to credibly testify to what is happening. He would risk becoming part of a kind of machination of the detaining power that would show him that the men he wants to show him can be prepared and paid to say that it is even better than Club Mediterranée or that they cannot see the rooms that are the most relevant, say, where there are instruments of torture or other.
On the other hand, if the delegate refuses, he also knows that the prisoners will not see anyone and he knows how important his visit is to these people. He is therefore in a dilemma and from this dilemma we can only get out of it by making very difficult choices and trade-offs that depend on individual situations. In principle, he should not go, but he can still choose to go if he thinks that is the lesser of two evils. There is a general rule, but there are possible exceptions. The general rule is that he should not go, but there is still a discretionary part that means that this general rule can be broken in a whole series of situations.
When the delegate is on the spot, he visits according to what has been said and in particular he will first meet the camp commander, i. e. the authorities of the detaining power, then he meets the prisoners and prisoners, but there he will meet only a few depending on the hazards and hazards of his visit, and he will meet the medical staff. He will also visit the premises, the various rooms, the barracks, the showers, etc. At the end of his visit, he returns to the camp commander and gives him a brief report of what he has seen and the problems he has identified.
He then prepares a report which he sends to the ICRC. At headquarters, this report and reread and what the headquarters does in this matter is above all to purge the report of any personal and subjective remarks. The ICRC is very keen that these reports should be in a perfectly objective tone, findings that are de facto without entering into any personal assessments that might offend. This ratio thus purged is then transmitted to the original power and also to the detaining power.
This is how the visits take place and they can of course be repeated, because it may not always be enough to make a visit unless the conflict is really very brief and people are quickly released. In passing, it should be noted that ICRC visited only one prisoner of war, General Noriega, when he was arrested by the United States following the intervention in Panama in 1989. He was the head of state, but he was also the head of the armed forces, so he was entitled to prisoner of war status, and the Americans respected that status because Noriega had certain advantages in the prison he was in under Convention III. One of these advantages was that he was visited by the ICRC. So the ICRC also travelled for a prisoner of war, but this is a very exceptional case.
The death of prisoners of war[edit | edit source]
Prisoners of war sometimes die. This happens quite frequently when they are wounded or sick, but it also happens for other prisoners. In the event of death, a death certificate must be drawn up by the holding power. The relevant provisions are found in Articles 120 and 121 of Convention III. This certificate will specify the most important data and also the reason for death. In case of doubt, it is obviously necessary to conduct an investigation as specified in the provisions mentioned to determine the cause of death. This is transmitted to the intelligence office - Article 122 -, the ICRC's intelligence office, which then transmits this documentation to the originating power.
The convention then specifies that an honourable burial should take place if possible according to the rites of the deceased and in a marked individual grave so that this prisoner can then be found, not the Mozart syndrome, a false common and we no longer know where he is, but rather an individual grave. The convention goes as far as to specify that the detail becomes downright moving, that if possible the deceased prisoner should be buried near his nationals, if possible. There is a kind of solidarity even in the death between prisoners.
Is it possible to burn prisoners of war like cremation or do we absolutely have to bury them? If we read article 120, we realize that no, the burial obviously, these conventions were made by Europeans and Americans in 1949, but incineration is recognized there because incineration is also a common practice in some cultures, particularly in Asia. This is mentioned very spherically. We look, for example, at the third paragraph of article 120, with burial or cremation to be preceded. So it is quite possible to proceed with incineration.
Moreover, all these provisions are always subject to what is possible in the circumstances. The convention is therefore actually deaf in this respect.
The trial of prisoners of war[edit | edit source]
Prisoners of war may be criminally prosecuted for crimes they have allegedly committed either before they were captured or while they are in the prisoner of war camp, a prisoner of war may murder another prisoner of war and they may be prosecuted for both ordinary crimes, Noriega, drug trafficking, and crimes related to the armed conflict, i. e. war crimes.
The agreement specifies how these trials can and should take place, the provisions are found in Articles 82 et seq. We will see, among other things, that there are rules on fair trial, on the duty to notify these trials to the protecting power so that it can attend the trial, and we also see that the death penalty is possible, although limited, it must have been applicable in the legislation of the country concerned before the conflict, but it is not totally excluded from this death penalty - Article 100.
There is a provision to be specifically mentioned in the context of these trials, prisoners of war, is that for attempts to escape from the prison camp, the escape is obviously not successful because if the escape is definitely successful, there will be no need to do much, but for attempts to escape, it is specified in Article 92 of the Convention that this cannot be considered a criminal offence giving rise to a criminal conviction, so there is something infamous, but that there is only one disciplinary sanction that can be imposed on this prisoner.
The idea behind this provision is that a prisoner of war who tries to escape to try to join his own lines and someone who acts honourably out of patriotic sentiment and that this should not be sanctioned by a criminal sanction. On the other hand, it disrupts the security of the camp and it would also not be appropriate to require the detaining power not to sanction this attitude with disciplinary measures, because if we could not sanction we would also give an incentive to escape attempts and that of course we do not wish to impose it, it would not be realistic to impose it on the detaining power.
Repatriation or release[edit | edit source]
There comes a time when prisoners of war are released. If that time doesn't come, it's because they died before.
So there are different ways of repatriating. There are some of them that are purely voluntary, i.e. the detaining power can release, "enlarge" as we say in the language of the European Convention on Human Rights, some prisoners for various reasons, but there is no legal obligation to do so. It is therefore purely discretionary for the holding power: it can, as it cannot, also not do so.
There are mandatory repatriations provided for by law. There is no discretion there. When circumstances arise, prisoners must be released.
The voluntary transfer[edit | edit source]
The exchange of prisoners of war[edit | edit source]
In repatriation or even voluntary, discretionary, free transfer, there is first of all the exchange of prisoners of war. Sometimes belligerents agree to exchange prisoners, this relieves them of the obligation to take care of these prisoners, to feed them, to house them, it is a manifest discharge and moreover it is not to the disadvantage of the one who liberates because he obtains a concomitant release from the other party.
It would be wrong, however, to believe that exchanges are always man against man, rank against rank with perfect secularity. It is of course possible to say that fifty infantry soldiers are being released and that the other side will also release fifty infantry soldiers. There's nothing to stop it.
In practice, it is more often observed that exchanges are more gradual, particularly between Israel and the Arab States, there have often been extremely unequal exchanges where Israel has released a significant number of soldiers from Arab countries while only a few Jewish soldiers have been released. One reason for this is that Israel attaches particular importance to the well-being of its soldiers and is prepared to release ten to one, for example; this is a very common practice in this area.
There is no legal obligation to do one by one because it is voluntary, it is an agreement between the parties.
Transferring prisoners of war to a neutral state[edit | edit source]
Prisoners of war may be transferred to a neutral state - Article 111. We can transfer, we don't have to. A neutral state may propose to do so.
As for Switzerland, at least as an antonomastically neutral state, it received a whole series of prisoners of war, particularly during the First World War, which came to this country, relieving the belligerents of the burden of keeping these prisoners on their territory. It is a service provided by neutral states to the belligerents, if a neutral state receives these prisoners on its territory, it is obviously obliged to keep them, not necessarily interned as strictly as in the belligerent countries, but to keep them on its territory, not to release them in other words until the end of the conflict or until it is authorized by the belligerents to let them go.
The idea, of course, is that these people remain in the neutral country and no longer participate in the armed conflict, that is the idea of transfer to a neutral country.
Unilateral release of prisoners of war without any compensation[edit | edit source]
It can also happen that a belligerent decides to unilaterally release prisoners of war without any compensation.
It may seem strange to do so, but it only shows one thing, which is that you have no field experience if you reason like that. If you're in college, you're not in the field.
Why would anyone want to unilaterally release prisoners of war? There are eminently practical reasons for this: we capture a certain number of them, we cannot keep them because we do not have the means of transport, because we have few men to transport them, it is too complicated in the camp. In the 19th century, killing them on the spot was still apparently admissible according to a whole part of the doctrine, today it is no longer admissible. And so, if practically speaking, we do not have the possibility of transporting them, what we are doing is taking away their weapons and releasing them into the wild because it is the lesser of two evils.
It is also obvious that we can release prisoners we already have in camps. If the camps are full and we no longer have the necessary resources to keep them, if no neutral country has yet come forward to take them, then we can get rid of a certain number of them, maybe we release the weakest, those who may be sick and stunted and who will not participate too much in the conflict, but we release them.
This is therefore possible, but purely discretionary.
The obligation to transfer prisoners of war: cases of repatriation[edit | edit source]
The seriously ill and wounded during the armed conflict[edit | edit source]
First of all, in article 109 et seq., the so-called seriously ill or seriously wounded in war. These are prisoners of war, i.e. captured soldiers of the opposing power who have been captured and who are subsequently so seriously affected by disease or injury that it is obvious that they can no longer participate in armed conflict even after treatment.
Therefore, detention in a prisoner of war camp is not punishment, but security detention. He is holding them because he does not want to release them, if he released them, they would continue to fight her.
But in this case, the very reason for the detention disappears, because these people will no longer be able to fight him and assuming that he has no other reason to keep them because he would know extraordinary military secrets, these people must be released.
Knowing when prisoners meet the conditions to be seriously injured or ill is a medical issue and there are mixed medical commissions provided for in the texts with the mentioned provisions that deal with this issue in the event of controversy.
These commissions have sometimes worked in this or that conflict, so it is not entirely a dead letter. It may of course be obvious that a particular prisoner is so seriously affected that he or she must be released, at which point the case is not in doubt and it will not be necessary to use certification by doctors in these commissions.
For the repatriation of these prisoners, everything happens through very special agreements that the parties must conclude with a significant involvement of the ICRC. It is obvious that these people cannot simply be released, because their conditions are such that sometimes even transport can be fatal. These are therefore things that must be organised and this repatriation, which is carried out by air, is generally organised by the ICRC in such a way that it is possible to exchange views outright, i. e. to make a round trip between the two belligerents and to repatriate the seriously injured and sick bilaterally in a single process.
This repatriation modality is already taking place during the armed conflict.
All prisoners of war who must be repatriated without delay at the general end of hostilities[edit | edit source]
For all other prisoners who do not fall into the previous category, compulsory repatriation takes place at the end of the armed conflict and this is the subject of an important provision of Convention III that has received much attention and rightly so, namely Article 118. It opens Section II, Release and Repatriation of Prisoners of War at the end of hostilities: "Prisoners of war shall be released and repatriated without delay after the end of active hostilities".
This means that at the general end of military operations, a notion already analysed, which is therefore the definitive armistice, prisoners of war must be released, but not in any way, there are two words in Article 118 that are legally of great importance, the word "repatriate" and the word "without delay".
Repatriate[edit | edit source]
The text said will be released and repatriated. Moreover, the text does not say released or repatriated, it says released and repatriated and this was completely voluntary. In other words, the reactors of Article 118, as the preparatory work shows without the shadow of ambiguity, did not want to allow prisoners of war to be released without being sent home, i.e. to their original power.
Repatriation, on the other hand, is mandatory and must be sent back to the territory of which they are nationals. This choice was due to historical experiences, as there have been more than one time warring parties have argued that prisoners of war do not want to return, that they have contracts, lucrative work, that they prefer to stay in Russia and work in beautiful conditions or that they prefer to go to this or that other state again to work with interesting employment contracts. Full of subterfuge not to repatriate the prisoners. On the strength of this historical experience, the drafters of the convention wanted to put an end to these abuses and manipulations by saying that, at the end of the conflict, these people must be sent home, without exception, without history, without blablas.
This is understandable, but the practice after the Second World War quickly moved in a direction that showed the weakness of this regulation in a new light, because it has already happened for some Russians who were sent back to the Soviet Union after the war, Russians who belonged to minority ethnic groups, the kulaks for example having disappeared into the gulag. But even more so the Korean War that broke out in 1950, Communist North Korea and South Korea supported by the United States, what we were confronted with in this armed conflict was that a whole series of North Koreans did not want to return home at the end of the conflict. That is, they didn't want to be repatriated, it was not very funny to be in North Korea at the time and Professor Kolb doesn't think it's much more enjoyable today.
The question therefore arose very quickly as to whether these people should be forcibly sent home when they fear persecution, disappearance in concentration camps or an unfortunate fate. At the same time as the Korean War, the 1951 New York Convention on Refugees was adopted and, as we know, Article 33 of that convention still contains a provision that is often invoked today, which is the principle of non-refoulement, i.e. that a person, in this case for the New York Convention a refugee, is not returned to States where they could legitimately fear physical integrity violations, including torture.
To put it briefly, the Western powers at the time refused to forcibly repatriate North Koreans and considered that the principles of recent human rights and in particular refugee law, and therefore the principle of non-refoulement, should be applied to these people, which gave rise to controversies quite later with the Soviet Union and China, and therefore communist countries, which insisted on the letter of the Convention in Article 188, repatriation, full-stop, and nothing else.
Subsequently, this issue was resolved as so often in international cases because it was agreed that the Convention in Article 118 was amended by subsequent practice in line with human rights law. That is, it is now accepted that this provision has been modified by subsequent human rights law so that a person cannot be returned against his or her will to a State where he or she fears persecution.
In order to ensure that there is no manipulation in this matter, as history has given so many examples, the ICRC is in charge of interviewing these people in such a way as to establish that it is really their free will not to return home and to choose another place to go. We must therefore no longer take Article 118 literally today.
This subsequent practice, which began with the Korean War, but was contested at the time, was followed in a series of subsequent conflicts without giving rise to any disputes, such as the Iran-Iraq conflict in the 1980s, where a whole series of Iraqis hostile to Saddam Hussein did not want to return to Iraq at the end of the armed conflict and received the so-called treatment. Saddam Hussein was perfectly comfortable with it, rather than having his opponents at home, who were also arranged elsewhere, so it no longer gave rise to protests as it did in the 1950s and it is now a given. This is an influence of human rights law on IHL in terms of changing it.
Without delay[edit | edit source]
The Convention referred to in Article 188 shall be released and repatriated without delay after the end of hostilities.
The term "without delay" is understood. Here again, we want to close the door to manipulation, because it has very often happened that the release of prisoners of war takes years. However, we must read this provision with a grain of salt. First of all for obvious practical reasons and perhaps even for legal reasons, at least if the case law on this point of the Eritrea-Ethiopia Arbitration Commission is followed, which is not an indisputable complement.
As for the first aspect, i.e. the practical aspect. It is obvious that if three to ten prisoners of war are held as they apparently were, at one point there were only three, as was the case with the Argentinians or the British during the Falkland/Malvinas war. By hypothesis, if you have three people in custody, it is not very difficult to release three people without delay. If we have several hundred thousand prisoners of war in custody, we are still in a different situation. This was the case in the 1971 India-Pakistan war, where there were literally hundreds of thousands of Pakistani prisoners of war in India spread over the continent, which is just barely and very slightly larger than Switzerland, and therefore we understand that releasing these people without delay is not something that can be done without adequate preparation.
It took a lot of preparation for this repatriation, we had to charter special tarins because the prisoners cannot be released just like that into the wild, we must also make sure that they do not also become the object of public condemnation because there may be hostility towards them. Special trains have been chartered that have crossed the whole of India, with the ICRC once again as the main actor. All this takes some time to be organized and also to be executed because if we have 600,000 people to release, it is not insignificant. Moreover, we can't even just make them leave like that, there are safety instructions, we have to take care of the food, there are a lot of things to organize, it doesn't happen without delay, actually. But we must move forward and that is what the convention is all about.
Second, maybe also a legal limit? The Eritrea-Ethiopia Arbitration Commission, in its arbitral awards on prisoners of war in this particular conflict, suggested the following: what had happened in this conflict was that one party had started to release prisoners from the other party in a broad and bold way while the other party was not doing it at the same pace, it was releasing as it pleased.
The arbitrators considered that the State that had released more quickly and in greater numbers could begin to become more restrictive, i.e. suspend its release process to stimulate the other party to make progress in its own to ensure the release of prisoners of war. Roughly speaking, the Arbitration Committee has admitted here that there may be some sort of reciprocity, almost as a countermeasure to stimulate.
This is not without being questionable because in Geneva law, in principle there are no such considerations of reciprocity, there should not be any. However, we understand the commission's motivation, which is to ensure that there is not a complete imbalance and that the party that has released more can still keep in its hands a kind of asset to motivate the other party to also fulfill its duties.
It is therefore a case law on this poorly insured point, the practical reason for which can be seen. From a legal point of view, not without doubtful aspects.
The Geneva Convention IV: the protection of enemy civilians[edit | edit source]
Opening remarks[edit | edit source]
Convention IV, here are some general remarks before entering the analysis. The 1949 IV Convention is an innovation while the others are not, neither Convention I, II nor III are new in the sense that they would govern persons who were not previously covered by IHL.
For civilians, on the other hand, there was no convention protecting them in 1949. It is therefore due to progress in IHL due to the abuses of the Second World War, since the Second World War was one of the first conflicts in which civilians were at the centre of casualties and this was to accelerate further after 1949.
In the 1930s, the ICRC had tried to conclude a convention on the protection of civilians against bombardments, including during the Spanish War, which highlighted the issue, but States did not want to go down this path because the treatment of civilians is a little bit like a kind of human rights law and was considered an internal issue that we did not want to touch.
It is even the longest of all the Geneva Conventions and it affects those civilians who were not protected except for a few very weak provisions in the law of war occupation.
Convention IV, by protecting civilians, i.e. a considerable number of people without special status, is somehow similar to human rights law. Indeed, it is not entirely by chance that the first bridge to human rights between IHL and human rights was successfully built under the Fourth Convention at the time of the territories occupied by Israel in 1967.
However, it should be noted that there are significant structural differences between human rights law on the one hand and IHL, in this case the Fourth Convention protecting civilians, on the other. The most important difference is that human rights law is in principle a right that protects any person under the jurisdiction of a State, any person without other status and without exclusion, whereas Convention Four concerns above all with some very small exceptional residues, especially the protection of civilians of the opposing party, i. e. enemy civilians in their contact with the belligerent to whom they do not belong. This is therefore not the protection of every human being, but protection as is typical in times of armed conflict between persons and the opposing belligerent because civilians of the opposing allegiance or nationality are considered to be at risk of being subjected to harsh measures in relation to a belligerent who obviously considers them enemies.
Nor are civilians of a belligerent's own civilians protected by Convention IV. If Italy declared war and entered into armed conflict against Germany, Convention IV would not govern Italy's relations with its own nationals, because these are not enemy civilians of course, it would govern relations between Italy and German civilians and of course relations between Germany and Italian civilians.
A third remark is that according to the case law, however, there are two provisions that generally apply to everyone, and here we are basically in a way of considering the typical things of human rights, which is common Article 3. Case law considers that these are minimum humanitarian rules applicable in all circumstances and therefore to all civilians, including those of any nationality. And the same applies to Article 75 of Additional Protocol I, which is a provision "pure human rights sugar". The Eritrea-Ethiopia Arbitration Commission has ruled in this direction in the civilian awards.
Fourthly and finally, Professor Kolb points out without having time to discuss this question, which should be discussed, it is possible to consult the comments to Convention IV, that there is an article 5 in this provision. This provision provides that certain derogations from the protections of the Convention as written are possible when persons protected by the Convention are suspected of engaging in activities prejudicial to the security of the power in whose territory they are located.
So, for example, there may be enemy civilians, but among these, there are some who are peaceful and others who may be engaged in espionage, sabotage or other activities, who are therefore not as peaceful as that and who are agents of their State of nationality without becoming combatants, soldiers, and therefore, it is obviously possible to take certain measures that are more rigorous towards the latter to protect their security. The way this is possible is described in Article 5.
This article is obviously not a provision that the ICRC loves, and Professor Kolb understands it, because it allows legal restrictions to be imposed without very secure concurrent controls. We are in a phase of armed conflict and therefore controls would be difficult. But the provision is obviously realistic, because it takes into account the fact that civilians are not always as innocent as they appear to be in the general ideology. It is a question of measurement and the Convention also allows for certain exceptional measures with regard to persons. IHL is not simply a dreamer's right, it is quite realistic and well balanced.
Applicability ratione personae: definition of protected civil[edit | edit source]
Who are the people protected by the Fourth Convention? The personal scope of the Fourth Convention, in other words for those who do not understand the legal vocabulary to which the Fourth Convention applies, this personal scope is defined in Article 4. It is the same as in Convention III. It is the first paragraph of Article 4 that should be looked at first and foremost, as it contains the most important information. Paragraph two must also be mentioned.
Paragraph one states: "The Convention shall protect persons who, at any time and in any manner whatsoever, are in the power of a Party to the conflict or an Occupying Power of which they are not nationals in the event of a conflict or occupation. If we apply our legal laser to this provision, and try to determine what the key terms are, we will easily see that there are three of them.
First of all, "persons", then, these persons must be "in power" of a party to the conflict or an occupying power, and then, "of which they are not nationals". The other terms are obviously there too, but they are much easier to understand, they do not have a very advanced interpretation. But, "people" requires an effort of interpretation, "in the power of", it is not very explicit also, we must see what it means, and "of which they are not nationals" also deserves to be examined more precisely on the question.
Persons[edit | edit source]
This simply means civil, because the first paragraph of Article 4 must be read in conjunction with the very title of the Geneva Convention. If we read the very title of Convention IV, the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, we understand that the term "person" in the fourth paragraph refers to civilians, and therefore in shorter terms, to civilians. Undoubtedly, it would have been better to use this vocabulary also in the first paragraph of Article 4.
Who is a civilian? We no longer need to dwell on this question, we have already analysed it elsewhere. A civilian is any person who is not a combatant.
In the hands of[edit | edit source]
In two cases, a person is in the hands of the other party. First of all, if it is held, if it is captured by that opposing power. And for example is held in a camp for civilians as there are camps for prisoners of war, there are camps for civilians and the regulations are very detailed in the convention in articles 79 to 135. It's quite detailed as a regulation. In this case, we are obviously in the power of the opposing power, but even if we are not in the camp, we are arrested, we are in the hands of the opposing forces, it takes us home and takes us to the commander's headquarters, we are obviously in the hands, that is, in the power of that opposing power. This is also interpreted by this provision, the Criminal Tribunal for the former Yugoslavia, as, for example, in the 1997 case Tadić, paragraphs 579 et seq.
Of which they are not national[edit | edit source]
There comes the most difficult question. Such persons must not be nationals of the power that holds them, otherwise they are not protected under the Fourth Convention.
First and foremost, it is obviously the civilians of the opposing power and it was them who the drafters of this provision had in mind. In the example Germany - Italy, Italian civilians, German civilians reciprocally.
In practice, there is a somewhat difficult problem in some cases of non-international armed conflicts that have been internationalized through global control by foreign States. Typical example for the tribunal for the criminal tribunal for the former Yugoslavia, the Bosnian war from 1992 to 1995. Armed conflict that was internationalized by the fact that some Bosnian-Serb groups were apparently controlled sufficiently closely - overall control - by Serbia and that some Bosnian-Croat groups were sufficiently controlled - overall control - by Croatia, so that in the analysis of the Criminal Tribunal for the former Yugoslavia, the armed conflict was not simply an internal conflict between Bosniacs, Bosnian Muslims and Bosnian Serbs, but in reality, in legal terms, a conflict between Croatia, Bosnia and Serbia and it is an international armed conflict. But if it is an international armed conflict as the analysis seems to suggest, then in principle, it is agreed that Convention IV should be applicable because Convention IV applies to international armed conflicts.
Now, however, there is Article 4 of Convention IV, and that poses serious problems in this regard, because it is obvious that the people who were fighting on the territory of Bosnia were formally all Bosniacs by the Bosnian-Serbs were Bosniacs, and the Bosnian-Croats were Bosniacs and the Bosnian-Muslims were Bosniacs, and therefore, if we go there with these provisions, Convention IV could never basically apply to anyone because the persons detained there were not nationals of another power, but nationals of the same power that held them. When Bosnian-Serbs held Bosnian-Croats or Bosnian-Muslims or vice versa, each time Bosniacs who held each other. These are not people of whom they are not nationals in the sense of the provision we have just seen.
Therefore, if this provision is strictly applied, it should be said that Convention IV does not apply. However, the case law has not taken this path. She gave a teleological interpretation of a certain power to this provision. This case law was initiated by the Appeals Chamber of the Criminal Tribunal for the former Yugoslavia in the case Tadić in 1999 at paragraph 163 et seq. and was subsequently followed in a series of cases. This is the case in which the longest development devoted to this issue is to be found.
What does this case law say? First, it notes that the wording of Article 4 gave the nationality of persons a certain, but only relative, importance. Nationality, therefore, through the words "they are not nationals". Why is this the case? The Criminal Tribunal for the former Yugoslavia emphasises the fact, and she is quite right, that the preparatory work shows that the drafters also had in mind some cases of persons who did not have the opposite nationality and who nevertheless had to be covered by Convention IV and the Tribunal mentions stateless persons. There are often a number of stateless persons who have been on a territory for a long time, and stateless persons do not have a nationality, that is the very definition of the term, so they cannot be persons who are not nationals of. Yet, the drafters admitted that these persons should be treated exactly as if they had the nationality of the State on which they live.
The Tribunal for the former Yugoslavia deduced from this that, in the end, this nationality criterion must certainly have been the dominant criterion because in an international armed conflict in which States normally fight, there are civilians of various nationalities, France - Germany, there are German civilians, French civilians, which is the case of course, but the criterion was not strict because if it were strict, these lateral categories would not have been allowed as stateless persons who should nevertheless benefit from protection. They were not included in the text of Article 4 because it was not intended to list all the possible cases where this might still be relevant.
The court destroys them only if nationality and describes the most frequent case is not legally an exclusive criterion, then the purpose of the provision - Article 4 § 1 - must be applied instead. The goal is to offer protection to all persons in the hands of the opponent.
In a non-international armed conflict that has been internationalized, there will be no different nationalities because it is basically an internal armed conflict. What we will have in this case is different allegiances.
In Bosnia, for example, there were opposing religious - ethnic allegiances between the three communities mentioned. Therefore, by applying the teleological criterion, therefore, to ensure that persons were protected from their opponent, whatever the nature and definition, by nationality, by allegiance and so on, for that reason, the court relied on the allegiance criterion without abolishing the nationality criterion at all, but by adding the allegiance criterion to nationality in turn. It is therefore either when we have a nationality other than the one who holds us, or when we have an allegiance, that we can be protected by Convention IV. Nationality and especially in the case of traditional international armed conflicts and allegiance in the case of international conflicts that are by internationalization of a non-international armed conflict at the root.
If we follow this case law and consider that the criterion has become generalised and applicable also in IHL, which a whole section of the doctrine does, then we have here an extension of Article 4 by the practice and the words "of which they are not nationals must be read again" of which they are not nationals or of which they do not have allegiance".
It should be noted that in the second paragraph, nationals of a co-developer are still specifically excluded from the protection of Convention IV. This shows that it is a question of fundamentally protecting enemy civilians. So, the nationals of a co-belligerent since they are in common cause, who are not considered as enemies, are foreign nationals, it is true, but they are nationals of a co-belligerent, someone on our side, these people are not protected by Convention IV, because we believe that protection is unnecessary, they do not normally have to face rigorous measures, but it is nevertheless recalled that if these persons do not enjoy diplomatic representation, they will enjoy certain advantages of Convention IV, i.e. if the co-developer does not have diplomatic representation, and therefore no one can protect them on the spot, it is up to the territorial State to protect them. This is paragraph two of Article 4.
Clauses of inviolability of rights[edit | edit source]
The inviolability of rights is covered by articles 6, 6, 6, 6, 7 and 7, 7, 7, 7 and 8 of the Geneva Conventions.
The first series, 6, 6, 6, 6, 6, 7, reminds belligerents that they can conclude special agreements between themselves, but that these special agreements cannot reduce the rights of protected persons. Two belligerents cannot therefore conclude an agreement to say that they will reduce a particular right of prisoners of war, such as prisoners of war, for example, will no longer be able to receive mail. Such a provision would not prevail over the contrary provision contained in Convention III.
This is a clause that ensures that the protections for persons protected by special agreement cannot be derogated from. This is a form of jus cogens, actually, but a little different from that envisaged in Article 53 of the Vienna Convention on the Law of Treaties.
Then there are articles 7, 7, 7, 7, 8 of the four conventions. More specifically, this concerns the inalienability of rights, i.e. the absence of the protected person's ability to waive the rights granted to him by the agreements. Thus, a prisoner of war cannot unilaterally waive his rights under Convention III. The drafters of the Geneva Conventions are wary of the pressures that protected persons might face to supposedly renounce their rights, they had historical materials. A whole series of prisoners of war in Germany who supposedly renounce the protection of the 1929 Convention on prisoners of war because they obtain magnificent employment contracts in the German steel industry where they are then used as undernourished labour until death and without the possibility of visiting the ICRC because these people lost the status of so-called voluntary prisoner of war; these doors have now been locked through these clauses, here Articles 7, 7, 7, 8.
Finally, it should be noted that Article 47 of Convention IV once again contains a special provision on the inviolability of rights for the occupied territories. It states that protected persons, particularly civilians in the occupied territories, cannot lose their protection through changes in the institutions of the occupied territory, such as the installation of a puppet government, or through a cooperation agreement between the occupier and the local authorities, Vichy or the Norwegian Kisling, or through annexation. For example, a power cannot say that it has annexed the territory, so it is no longer occupied territory, it has become its national territory, so there is no longer any need to apply the rules on occupation.
Article 47 does not prohibit annexation, it is jus ad bellum, it is elsewhere, you have to go to the Charter and customary law. Article 47 simply states that even if we annex, we cannot claim through annexation, protected persons lose their protection, and the issue is very topical with what happened in the Crimea. The same applies to collaborators, if the government concludes an agreement to say that the territory is not occupied or the right of occupation is not applied, this would not affect the applicability of Convention IV.
Obviously, in these cases, the power in question will not accept to call this an occupied territory. If we tell the Russians that Crimea is an occupied territory, with the label, we get nothing. The only thing we can do, but it is the only thing that Convention IV also requires, is to ensure that the people concerned are protected in substance; whether or not this is called an occupied territory is completely secondary. Nor did the Americans like the term "occupied territory" at the beginning of their adventure in Iraq; they were so-called liberators. The problem is that obviously, occupation, there is bad press in the West, no one wants to be an occupying power. The Poles when they heard "occupying power" in Iraq, it surprised them after what they had experienced with Germany, it was politically impossible to say that it was an occupying power in Iraq. Yet they occupied a very small part of the grace territory of the Americans who had let them manage that part.
The general rules[edit | edit source]
If we even briefly analyze the fourth convention, we will realize that it is made up of three parts, possibly four, but the fourth to look closely at it is part of a part.
There is a first bet which is the general rules in articles 27 to 34. These are the most important rules in human treatment. Then there is another part, the protection of enemy nationals in the territory of a belligerent, these are articles 35 to 46. Finally, there is the protection of civilians in the occupied territories, these are articles 47 and following, reaching 78. Then there is a very long part concerning the internment of civilians, rules on the camps in which civilians would be interned, as he knows from articles 79 to 135; this part is largely modelled on the regime applicable to prisoners of war in the third convention. To be a little more precise, there is an analogy from the Third Geneva Convention, but in a slightly lighter regime; civilians are less dangerous, they are rubbed off under slightly lighter conditions than the prisoners of war regime in the Third Convention. Analogy, but a little more flexible. Of course, the internment of civilians can take place both in the occupied territories and on the territory of the belligerents. Therefore, it is a part that can be perfectly integrated into the other two, we add to the general rules, which is why there are three or four parts depending on how we would like to count.
The general rules are in Articles 27 et seq. These are rules applicable to all protected civilians wherever they are. Consequently, the general rules are applicable both in the territory of the belligerents and in the occupied territories. From this point of view, it is a question of rules which, as in mathematics, put before the parenthesis what is common in order not to have to repeat it because otherwise these general rules would have had to be repeated in the section on article 35 et seq. for the territories of the belligerents, they should have been discussed again in the occupied territories. They were put in front of the parenthesis, which is now in its articles 27 and following, but there is a little more than that.
This is because these general rules also apply elsewhere, even if they are relatively rare cases; elsewhere in relation to the territory of the belligerents or the occupied territory. We can have contacts with enemy civilians also on the high seas, for example. If we inspect or seize an enemy commercial ship, at that time, we owe it to the enemy civilians with whom we are in contact on our warship, we owe them the protections of the Fourth Convention.
The general rules therefore go beyond the territories of the belligerents and the occupied territories, but not by much, it must be said from a practical point of view.
What are these general rules? The most important principles are set out in Article 27, which corresponds very broadly to Articles 12, 12 and 13 of the first three conventions, namely the principle of humane treatment with all its corollaries.
Then, let us take the package of articles 27 to 32. What is there in it? It contains a series of rules, respect for the person, the honour of individuals, family rights, religious beliefs and practices, habits and customs, no violence or intimidation, protection against insults and public curiosity being drafted from the third convention, the rules on habitual non-discrimination as we have already seen them in the context of Convention III, no physical abuse, no hostage-taking, no collective punishment, no terror, no looting, also some examples of the protections enjoyed by civilians under the general rules.
The rules of Convention IV on the protection of civilians when in the territory of an opposing belligerent. The Convention proceeds here in a relatively logical way. First of all, there are the general rules that still apply and then the question arises as to when a belligerent can come into regular contact with enemy civilians and it is concluded that either these civilians are already on its territory or the belligerent goes to their territory, hence this bipartition: civilian on the territory of a belligerent, civilian on occupied territories.
Civilians on the territory of a belligerent are typically those who were now fighting between Italy and Switzerland, it would be the Italians in Switzerland and the Swiss in Italy.
What guarantees does Convention IV offer to these persons? There are various ones. The first question that arises is whether enemy civilians, protected civilians, have the right to leave the territory where they are and where they find themselves to be enemies and therefore not necessarily always well regarded.
Convention IV in Article 35§1 sets out the principle. And the principle is that civilians have the right to leave the territory of the belligerent State and in particular to return home: "Any protected person who wishes to leave the territory at the beginning or during a conflict shall have the right to do so". This is the principle set out in the first paragraph. However, this principle is subject to a very broad exception in the sense that it gives rise to an assessment on the basis of very different criteria that are almost discretionary, almost, not quite, on the part of the belligerent. This exception is stated immediately afterwards in the same sentence:"... shall have the right to do so... unless his departure is contrary to the national interests of the State". "National interests of the State" is of course a very broad term that the belligerent will be able to appreciate with some latitude.
However, it would be wrong to think that the territorial State in question could put everything it wants in its national interest. Here, therefore, in this respect, the preparatory work is undoubtedly very useful and shows that it is not a question of annulling the general principle according to which civilians can leave the territory, but of taking into account the legitimate interests of the territorial power. Indeed, we do not see why the territorial State should let young men leave at a military age, and when they return home as civilians, they can certainly be incorporated into the enemy State's army, and as a territorial power, we are not obliged to let them leave so that they can fight against us. The same applies if you are a civilian with special knowledge, who has worked in industry where there is sensitive information from a military point of view, it is obvious here too that the territorial power would not be obliged to let it go. It is therefore a question of the interests and protection of this power against hostile acts, against the service that could be rendered to the opposing belligerent. But if there is no such risk, if the risk is not tangible, if there are no particular reasons, the departure should be granted.
Dans la mesure où le départ est refusé, la convention précise qu’il doit y avoir alors à ce moment-là des recours. Il y a des « garanties judiciaires », cela est prévu à l’article 35 qui renvoie à cet égard à l’article 43 qui est l’article des garanties procédurales qui sont données ; il faut un recours au moins deux fois par année pour faire contrôler si les conditions contre le départ, qui militent contre le départ son encore réuni. Dans la pratique, ce n’est même pas si souvent que les États belligérants essayent de retenir le départ des civils ennemis. Souvent, ils sont assez soulagés que ces personnes quittent le territoire. La pratique nous montre parfois plutôt le problème inverse, à savoir des expulsions de civils de nationalité ennemi, parfois des expulsions collectives.
Les expulsions collectives ne sont pas admises dans le droit de la paix en vertu du régime de la convention européenne des droits de l’homme et des autres conventions du même type. Pour ce qui est du droit des conflits armés, selon la jurisprudence de la commission Érythrée — Éthiopie, dans les sentences arbitrales de 2005 concernant les civils des deux parties, selon cette commission arbitrale, des expulsions collectives sont licites en vertu du droit des conflits armés et compatibles avec la convention IV. Elles avaient été pratiquées entre les deux belligérants Érythrée — Éthiopie. C’est donc là une jurisprudence relativement musclée. C’est le problème donc inverse. C’est plutôt qu’on n’a peut-être pas envie de quitter le territoire et qu’on est expulsé. La convention de 1949 considère le cas où l’on veut partir et où on nous retient qui était plus pratique, plus important à l’époque.
The second question concerns the freedom of movement of civilians in the territory of the power where it is located. This freedom of movement may be restricted for security reasons. This restriction may be of various kinds. It may extend in cases of a certain gravity to internment or the just less restrictive measure, forced residence - Articles 41 and 42: "If the Power in whose power the protected persons are located does not consider the other control measures mentioned in the present Convention sufficient, the most severe control measures to which it may have recourse shall be forced residence or internment, in accordance with the provisions of Articles 42".
Of course, who can do the most can do the least. Articles 79 to 135 may be placed under house arrest or interned, if internal, but since the most can be done, the least can also be done. This means that a belligerent power could, for example, simply request that civilians periodically report to a post or that they be prevented from travelling.
Internment is by far the most cumbersome measure and the Convention provides for it only in cases where it is necessary. It must be said that in State practice, this subsidiarity of internment, i.e. the fact that it is subject to a strict test of necessity and proportionality, has not often been respected. The belligerents had a light hand in the internment of enemy civilians, it was already common practice during the Second World War to have a general suspicion of its enemy civilians and to commit them sometimes en masse. Even liberal powers such as the United Kingdom have interned German civilians, the United States and Canada have given themselves happily to the same exercise, especially also with regard to the Japanese.
This practice, which is not fully justified under the agreement, has continued ever since. Professor Kolb always likes to mention the example that is generally completely ignored and that he also ignored at the time when the events took place, during the Falkland/Malvinas war, there were automatic internments for a few weeks of Argentine nationals in the United Kingdom who were for those in the London area anyway interned, it seems, in an old prison that was reassigned to the service on that occasion with guards who were a little in their little shoes, because they felt that keeping these honourable Argentine citizens was a little unfortunate or even embarrassing.
Until quite recently, there was still a propensity to commit fairly quickly. If we want even more recent examples, the Bosnian war from 1992 to 1995 provides us with other examples, with the difference, however, that in the latter conflict there was a criminal court that had a mission to examine the extent to which war crimes had been committed and the jurisprudence of the Criminal Tribunal for the former Yugoslavia had clearly begun to tighten the screws in this area, because the court being a court of law has simply applied the Convention and the Convention specifies that internment is a measure of last resort, that it must therefore be necessary and that it must be proven that it is necessary for security reasons. And, as a result, there have been convictions in this area. That is, the court found in more than one case that the conditions for the massive internments that had once again been practised had not been met.
A good case where the issues really stand out is Kordić, Trial Chamber, 2001 at paragraph 271 et seq. There was a whole body of case law also afterwards, but Professor Kolb refrains from mentioning even more recent sentences and more recent cases.
Finally, there is also a series of provisions, quite remarkable, since Professor Kolb does not think that it would be easy to adopt them today, but they were adopted in 1949. There are certain measures that the territorial State must take or facilitate in the field of employment, such as the livelihoods of civilians who have lost their gainful employment as a result of the conflict. Articles 39 and 40 of the Fourth Convention should be examined. Professor Kolb does not think that today it would be conceivable that such a provision would be adopted even with majorities that are not at all SVP. Even with normal majorities, such provisions today would be hard to imagine: enemies are still being cared for in times of armed conflict, but the unemployed who are locally unemployed are not cared for here. It's still watered down, it's not a general obligation to provide work, but still, enemies in addition, it's 1949.
The war occupation[edit | edit source]
Contact between belligerents and civilians can obviously also exist when civilians are not on the territory of a belligerent, but the belligerent comes to them. This is called occupied territory at that time.
The law of the occupied territories is an extremely complex law and rich in questions that are legally very difficult to resolve, especially since several legal systems are intertwined. There is the order of the occupied power, the legal order of the occupying power and the international legal order with multiple references creating a triple layer and the relationships between systems quickly become relatively difficult. Professor Kolb wrote a book on the law of occupation with his friend Sylivain Vité, it is a book of about 500 pages with a whole series of answers.
What is an occupied territory?[edit | edit source]
What is the definition of the occupied territory? It is found in a short form, admittedly, but nevertheless very useful in Article 42 of the 1907 Hague Regulations. The Geneva Convention does not use this definition because it does not wish to alter it and therefore, as there is nothing more to add, it leaves the Hague law, which obviously continues to be applicable.
Article 42 of these regulations provides that an occupied territory is any territory de facto placed under the authority of the enemy army. This is both a definition of the occupied territory and also an indication of the beginning and end of the occupation, at least in general law, with the presence of the enemy army beginning the occupation, and with the departure of the enemy army ending the occupation. We've already seen in this course that it's a little more complicated than that, but roughly speaking, that's a rule that makes sense. And finally, this definition also contains a useful element of indication on the spatial extension of the occupation, because there will only be occupied territory where there is the presence of the enemy army, which should not cover the whole territory. France was not entirely occupied by the Germans as we know, there was a part of France that was occupied, another part that was not.
These definitional elements in article 42 show us that occupation is first of all made of a hostile presence. There is no occupation under the law of war and therefore also no occupation under Convention IV if the military presence is not hostile, is not enemy, but is carried out with the consent of the local sovereign. In this case, we have what is called a peaceful occupation and the rules of the law of war, of IHL if you will, are not applicable. Obviously, consent must be free and real, an issue that could be discussed again.
Secondly, this definition also shows that it takes a military presence to have an occupied territory. A territory is occupied by the presence of an enemy army. This does not mean that the army must be alone and it will not be in an occupied territory. The administration follows the army, the army settles in and then there are civilians, officials of the occupying state who also come to administer the occupied territory. Nevertheless, the military presence in the occupied territory provides the backbone of the regime and security. So we need this military presence.
Finally, it also means that a physical presence on the territory is necessary: military, but this presence must be effective on the territory. There is no territory occupied by the simple fact of controlling borders or controlling the airspace, the maritime space around a State, although this may imply certain obligations. In any case, no occupied territory without an enemy presence is understandable because a whole series of obligations of the law of occupation implies such a presence. Maintaining order and public life, which is the occupying power's great obligation, would still not be possible if we only have air traffic control.
Protection regime[edit | edit source]
What is the content of the right of the belligerent occupation, what does it specifically ask the occupying power for this right? There are two fundamental aspects. One concerns the maintenance of the status quo in the occupied territory, i.e. an obligation not to transform the institutions and legal order in the occupied territory. Then, the second major component is the respect for human rights, the "human rights" component.
Maintaining the status quo[edit | edit source]
This principle has two parts: one that looks towards the jus ad bellum, the other that looks towards the jus in bello. So, one who looks at the law of peace and the law of the Charter and therefore it falls outside the emergency field in principle, but Professor Kolb mentions it all the same. And then the other one, which is anchored in the juice in bello and which interests us in this respect.
The first part, jus ad bellum, which is important enough for Professor Kolb to mention it anyway, is that the belligerent occupation does not change the territorial status of the territory in question. In particular, the belligerent occupation does not operate a transfer of sovereignty. In the past, the same was true, the transfer of sovereignty was made at the time in the peace treaty. Occupation is therefore an incident present on the territory of an enemy army because of the fortunes of war, but which does not affect territorial status.
This also gave rise to the rule that is obviously partially independent of the question of occupation, which is to prohibit annexation. Modern international law, as we know, prohibits the annexation of territories. This obligation concerning non-annexion is directly linked to Article 2§4 of the Charter of the United Nations. We also know that in the event of annexation, other States are asked not to recognize, there is an obligation of non-recognition. There is also this in the draft article on State responsibility, articles 41 and 42, and the article on State responsibility, and this is why a whole series of annexations are not recognized. Of course, there is the case of the very recent Crimea, but there are also other much more classic cases such as the occupied territories, annexed and partially annexed by Israel, which means that a whole series of States have given rise to non-recognition, so that many embassies are not in Jerusalem, but in Tel Aviv for this reason because they do not wish to recognize the status of Jerusalem with its annexed part. The same is of course true of the annexation of Kuwait by Iraq in 1990, which was not recognized, there are even Security Council resolutions calling on all States not to recognize and declaring it null and void, in particular Security Council resolution 660.
This aspect is rooted in the law of war, in the law of armed conflict. It manifests itself here above all as an obligation to respect the laws and institutions of the occupied territory to the maximum extent possible; in other words, not to transform the laws and institutions that the occupying power finds in the occupied territory. This is obviously a general principle, not without exception, but a fundamental principle of the right of occupation.
Why does this principle exist? Professor Kolb believes that it is not difficult to understand him. In the past, when the belligerent occupation led to annexations and it was lawful, we understood quite well that we could gradually change the territorial status because by occupying a certain territory and if we had a purpose to keep it, which was possible at the time, we were already beginning to transform that territory to better incorporate and digest it. But, since, in modern law, annexation is prohibited and the belligerent occupation is only a parenthesis due to the fortunes of war, it goes without saying that this territory will be returned to its legitimate sovereign, one can also say legal or licit.
Since this territory will have to be relocated, we will have to respect the fact that institutions and the law applicable in this territory can only be modified by its owner and not by the occupant who is not the owner. We squat a territory for a certain period of time, the law gives permission, but it is not at home and therefore we do not have to manage like the owner, to transform the institutions, that is to say, it was a unitary state and we made it a federation, it was a federation and we made it a unitary state or we transformed the law in the occupied territory all this also because these are typical measures that prepare the annexation. So that's the reason for the rule.
Now, it is not without exception and it sometimes poses rather insidious problems, especially when the occupation is very prolonged. For an occupation that lasts a few months, it is not a big problem to do nothing, that is, to freeze the situation as much as possible until we get the hell out of here. When you are there for fifty years, it is still more difficult than to imagine that you could have a freeze as important as required by Convention IV. This is the problem of prolonged occupation.
The most obvious exceptions to this principle are first of all inherent in the provisions of the law of occupation itself, in particular in Article 43 of the 1907 Hague Regulations and also in Article 64 of the Geneva Convention IV. If we look at the most important provision on this subject, 43 of the regulations, it states: "Since the authority of the legal power has in fact passed through the hands of the occupier, the latter shall take all measures dependent on him in order to restore and ensure, as far as possible, public order and life by respecting, unless absolutely prevented, the laws in force in the country". Institutions depend on organisational rights and at that time it was not necessary to mention them and still separately, it is covered by laws.
There are impediments that must undoubtedly be absolute, but if we add to that the first part of the sentence, that is, the occupier will take all the measures that depend on him to restore and ensure as much order and public life as possible, this makes a twofold exception, because it must be possible to suspend, to amend sometimes the applicable domestic law where necessary to restore and maintain order and public life and in addition, in the event of absolute impediment, i. e. where the security of the occupying power is at stake, it is also possible to suspend in any event or sometimes even amend the applicable legislation.
It can therefore be seen that, in view of these two exceptions, there is still a relatively high degree of flexibility in the law of occupied territories. Moreover, other exceptions have come together around the applicable law, they are not in the texts or only indirectly mentioned in the texts as in Article 64 of the Geneva Convention IV. Professor Kolb pointed out that Article 64 concerns criminal legislation in its text, but has always been interpreted as referring to legislation in general.
This other exception is the exception for repressive laws. When the Allies entered Germany at the end of the Second World War, one of the first things they not only suspended, but repealed was the racial and repressive laws of Nuremberg, that is, the Nazi laws. And it is relatively easy to understand why the occupying power cannot be asked to keep such laws in force in the occupied territory.
There is an objective basis today for this question in article 64 of the Geneva Convention IV: "The criminal legislation of the occupied territory shall remain in force, except to the extent that it may be repealed or suspended by the Occupying Power if such legislation constitutes a threat to the security of that Power or an obstacle to the application of the present Convention". It is not very clear, but it covers the case here, because of course the Geneva Convention requires a whole series of things for the protection of civilians, including rules on non-discrimination and the Nuremberg racial laws would have been completely contrary to the provisions of the Geneva Convention, which would prevail as international law over domestic law as provided for in Article 64 itself.
It is therefore possible to suspend or repeal such laws that are incompatible with the Convention itself. In other words, an occupying power could not say that it must apply the applicable law on the territory, so it allows the racial laws of Nuremberg to be applied, it respects the laws in force, too bad if that prevents it from applying the Geneva Convention and asserting the guarantees that are in the Convention. This argument is impossible according to the text of Article 64.
It should be noted that this practice was buried at the adoption of the convention because, at the time the Nuremberg racial laws were repealed, it is obvious that this article 64 was not yet written and that is in 1949, and we are talking about the entry of the allies and that is in 1945.
It is also accepted in practice that certain public laws of the State may be suspended and not repealed.
The most classic example is that of conscription laws, it is obvious that a belligerent should not have to let the opposing belligerent conscript individuals for the military service in the occupied territory. The same applies to the suspension of freedom to demonstrate or similar public laws.
It is also accepted that the occupying power can legislate itself for the occupied territory, but then, beware, it does not modify the legislation of the occupied territory, it brings its own legislative package. In the occupied territories there are at least three normative layers, the law of the occupied territory, the law of the occupying power, and international law. That makes it quite complicated. It is obvious that the occupying power can apply its own legislation for certain matters in the occupied territory, for its own security for example, and it is also accepted in this context that the occupying power can establish courts in the occupied territories, courts of the occupying power. For the simple reason that the occupying power obviously cannot trust the courts of the occupied power that have allegiance to the exiled government and that are obviously not very inclined to like it very much. Therefore, an occupying power that sees acts of sabotage against its occupation facilities can obviously try to repress these acts, it is a matter of its own security, a state cannot be forced to take blows without doing anything and it can establish courts. It is also recognized that these courts have a fairly broad jurisdiction, not only acts against the security of the occupying power can be prosecuted, but also war crimes, for example. That is why it was quite lawful under the most traditional occupation law to establish in the German areas occupied by the Allies, at least Western Allies or various and diverse courts to try German and/or other war criminals.
Respect for human rights[edit | edit source]
There are a number of provisions in Convention IV and also in the Hague Regulation in Articles 44 et seq. Articles 42 and 43 deal with questions of the definition of the occupied territory and the duty to maintain order and public life.
After that, there are specific provisions. Which ones? Professor Kolb mentions some of the most important ones. There is a prohibition on forced transfers and deportations - Articles 49§1 and 49§2 of Convention IV of 1949. There is a technical difference between forced transfers and deportations. The forced transfer takes place within the borders of the State concerned and the deportation crosses the border, people are deported to a third State.
It should therefore be noted that civilians from an occupied territory cannot be deported, cannot be extracted from that territory and bring to other territories or otherwise be forcibly displaced. It should be noted that for prisoners of war this is not true, they can be transferred to other territories, they can be detained anywhere by the capturing power.
Paragraph two of Article 49 obviously makes an exception for security transfers, which are called security evacuations. For compelling military reasons, it is true that when you have pockets of fighting somewhere, for example, it may be necessary to evacuate civilians. The fundamental point is that these occupations are temporary. This is what distinguishes them from forced or forced transfers or deportations.
The last paragraph of article 49, the sixth paragraph, 4ç§6, contains another rule of the utmost importance that is being violated in more than one occupied territory, namely the colonization of the occupied territories, i.e. the fact that the occupying power sends persons of its own nationality to them to "colonize" the territory, thus changing the population structure there. It is forbidden for the simple reason that it always prepares somewhere for annexation. You set up your own nationals so that you can say one day that they are in the majority and that they must therefore be able to determine themselves and everything else. We can see this kind of manipulation, it is one of the major problems of the territories occupied by Israel.
There is then a provision on the prohibition of forced labour, for example prohibited labour in the enemy army. However, there is a possibility of a penalty payment for work in the public interest. All this is regulated in Article 51 of Convention IV.
There are rules on the destruction of civilian property outside a situation of armed conflict unless absolutely necessary for military purposes. It is prohibited to destroy property belonging to civilians in occupied territories - Article 53. Moreover, Professor Kolb adds that collective sentences are prohibited, this is already found in Article 50 of the Regulation, which makes it problematic for Israeli practices to deduct houses because there has been someone in this house somewhere who has been a terrorist.
In articles 55 et seq. of this Convention IV, there is a whole series of provisions requiring the occupying power to do things, i. e. to deal with water and food, relief, medical services, i. e., in very brief terms, the supply of the civilian population in occupied territory. This supply to the civilian population is among the best protected in the occupied territories because these provisions, 55, and following.
Annexes[edit | edit source]
- Conventions De Genève Et Commentaires. Comité International De La Croix-Rouge. Url: https://www.icrc.org/fr/guerre-et-droit/traites-et-droit-coutumier/conventions-de-geneve>.
- Les protocoles additionnelsaUX conVentions de GenèVedU 12 aoÛt 1949. Url: https://www.icrc.org/fr/doc/assets/files/other/icrc_001_0321.pdf
- Full text of Protocol I
- List of countries that have signed but not yet ratified Protocol I
- International Review of the Red Cross, 1997 – No. 320 Special issue: 20th anniversary of the 1977 Additional Protocols
- 1977 Additional Protocols short bibliography (by ICRC)
- "New rules for victims of armed conflicts, Commentary on the two 1977 Protocols additional to the Geneva Conventions of 1949", by M. Bothe, K.J.Partsch, W.A. Solf, Pub: Martinus Nijhoff The Hague/Boston/London, 1982, ISBN 90-247-2537-2
- U.S. President Ronald Reagan's message to the Senate on Protocols I & II