e-book The Contemporary Law of Targeting (International Humanitarian Law)

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have aptly illustrated the complexity of targeting in modern warfare. This article Reference is largely to the law applicable in international armed conflict, that is.
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Distinguished by contemporary relevance, the Yearbook of International Humanitarian Law bridges the gap between theory and practice and serves as a useful reference tool for scholars, practitioners, military personnel, civil servants, diplomats, human rights workers and students.

Asser Press Distributor: Springer. Specific to this book: High-quality contributions; innovative articles; unique - the only yearbook on IHL in the world; current topics; double blind peer review system. They are obligatory for the States and for the belligerents, even when they have not formally adhered to them.

This is what happened with the Geneva Conventions, but there are other guarantees that enter into this category of customary international law rules see below on customary international humanitarian law. The origins of humanitarian law go back to ancient history. The concept of rules regulating war is recognizable in every culture, religion, and tradition.

It is closely linked to the history of war. In all historical periods, leaders set up rules and taboos that determine what is allowed and what is forbidden in military activities. These rules aim at trying to maintain control, discipline, and efficiency of military forces. They also aim at limiting the impact of violence and destruction, on the physical and mental integrity of combatants, in order to facilitate their return to society after the conflict has ended. The first laws of war were not universal but rather regional.

Most of its principles were inspired by religion and aimed at humanizing social, political, and military relationships. However, these rules were enforced only between people of the same cultural background. If the enemies did not speak the same language or were from a different religion, these rules were not respected. It is worth noting that, in the area of jus ad gentium , important Islamic writings were drafted before—and therefore probably influenced—European codification. This development was confirmed by contemporary international law that limits the conditions under which a State may resort to force while humanitarian law restricts the means and methods of war allowed, regardless of the objectives pursued.

International Humanitarian Law and its Application in Contemporary Conflicts

The codification of international humanitarian law intensified during the nineteenth century, driven by the nongovernmental humanitarian initiatives and the diplomatic conferences that led to the adoption of these conventions by States. A private Swiss organization, the International Committee of the Red Cross, created by Henri Dunant in Geneva after witnessing the lack of medical care provided to the victims of the battle of Solferino in , played a key role in this codification and in the implementation of relief. In Solferino, Henri Dunant discovered the hidden face of military confrontations between the major powers of the time: 40, dead and wounded from both armies were left where they lay to become prey to pillagers on the battlefield.

In , Dunant was involved in the drafting of the first Geneva Convention for improving the fate of injured soldiers, and he invited States to sign it at a diplomatic conference specially convened for the purpose. This convention proposed, among other things, that States accept the work of a neutral and independent medical relief committee authorized to fetch and care for wounded and sick soldiers, whatever their nationality. During the war of , the Committee extended its relief actions to prisoners of war not covered by the first Convention.

Thus the offer of neutral humanitarian relief preceded international humanitarian law and served as the basis for its later codification by States. The war put this dialectical humanization of war to the test, as States attempted to limit concessions concerning the neutrality of medical relief. At the peace conference convened in The Hague in , States demanded a rapid revision of the Geneva Convention of They left the right to relief initiative to the Geneva Convention and themselves adopted conventions relative to the peaceful settlement of international conflicts as well as regulation concerning the law and customs of war on land.

These conventions and regulations from The Hague conference in were added to and amended at the second international peace conference convened in The Hague in The regulation concerning the laws and customs of war on land, annexed to the fourth Convention of , summarized the rules and principles that continue to provide the framework for the law on contemporary conflicts. World War I — was a further test of the balance between humanitarian and military necessities and created new needs in terms of relief.

Furthermore, the application of the principle of reciprocity—the cornerstone of general international law—created dangerous legal vacuums relative to treatment and right to relief, as States were only bound to respect the right to relief for combatants of a State having ratified the same conventions. For this reason, in , the ICRC called for a review of the provisions relative to the treatment of wounded or sick soldiers and drafted an additional convention on the treatment of prisoners of war. The majority of the relief needs of combatants were thus covered by the new Geneva Conventions of However, there were still no regulations concerning relief for civilian populations.

In , the ICRC submitted a draft international convention to States concerning the condition and protection of civilians of enemy nationality on territory belonging to or occupied by a belligerent. This draft was met with considerable reticence on the part of the different chancelleries, which considered this to be a mission that should be restricted to States and their armies. The examination of this text was interrupted by the outbreak of World War II.

World War II was a theater of horrors where methods of total war rubbed shoulders with techniques of mass extermination. Given the events, it had become unthinkable to ignore the gaps in humanitarian law concerning the protection of civilians. Consequently, at the end of the war, and despite the creation of the United Nations tasked with guaranteeing peace and international security, a more ambitious phase of codification of humanitarian law got underway. The four Conventions adopted in Geneva on 12 August were the fruit of this recodification.

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The first three unified and improved on existing humanitarian law, until then spread across the various Geneva and Hague Conventions and relating only to the protection of wounded or sick combatants or prisoners of war. The fourth Convention, devoted to the protection of civilian populations in time of war, was a political and legal revolution. It instituted several categories of civilians protected by international law according to the type of risk to which they are exposed: poverty, occupation, deportation, attacks, sickness and injury, detention, internment, and the like.

However, it did not cover the obligations of State parties to a conflict with regard to their own civilians. This gap was filled in by two Additional Protocols, which unified protection with reference to the notion of civilian victims of conflict and without mention of enemy nationality. This development, written into Protocol II, was thus applicable to non-international armed conflicts, which by their nature take place within the borders of a single State and oppose national armed forces against parts of their own population.

The fourth Convention restructured and set forth, in a single text, the rules relating to both methods of warfare and relief. It prevented States and armies from avoiding responsibility for the populations placed under their control, while also providing for the rights of impartial humanitarian organizations, acting as neutral intermediaries, to deliver effective relief and safeguard the rights of the most vulnerable.

These Conventions recognized the dual role of the International Committee of the Red Cross both as a guardian of humanitarian law tasked with safeguarding its interpretation and proposing new codifications and as a relief organization ensuring the protection of victims. They acknowledged the special union between States and private humanitarian initiatives by annexing the statutes of the ICRC to the Geneva Conventions.

However, the situations covered by the Geneva Conventions continued to be centered on armed conflicts between States, with the situation of non-international armed conflicts covered only by their Common Article 3. The conflicts that have taken place over the past fifty years do not really enter this category. They have been marked by fights for independence and decolonization and numerous internal conflicts, some of which have been internationalized through the direct or indirect intervention of other States. The two Additional Protocols added to the Geneva Conventions in took account of two major changes in the form and methods of war: the fact that civilians were being targeted and becoming victims increasingly often and the growing number of internal conflicts.

Additional Protocol I extended the protection of victims of international armed conflicts already covered by the fourth Geneva Convention of Additional Protocol II created a completely new framework of protection for victims of non-international armed conflicts, which until then had only been covered by Common Article 3 to the Geneva Conventions of The specific difficulty of Additional Protocol II is that it has to address the political and military imbalance of non-international armed conflicts.

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Additional Protocol II thus clearly enters the domain of national sovereignty. Its content is an analogical but simplified transcription of the key provisions of the law on international conflicts concerning methods of warfare and right to relief for civilian populations. However, the definition and the rights of combatants arrested and detained in relation with the conflict are kept to a minimum, and it is essentially left up to the parties to the conflict to come to an agreement. Many of the provisions of international humanitarian law have been contested and undermined by military actions carried out as part of the global war on terror launched in the wake of the terrorist attacks of 11 September in the United States.

Yet humanitarian law continues to evolve in order to address these new challenges.

The jurisprudence of national and international courts has in many cases reestablished an interpretation of humanitarian law that both conforms to its spirit and is adapted to the so-called new situations. The recognition in of an extensive corpus of rules of customary international humanitarian law compiled by the ICRC simplifies and facilitates the application and interpretation of this law in new and complex conflict situations.

Today, international humanitarian law is the only legal code regulating relief actions within the context of a conflict.


The Lawful Use of Targeted Killing in Contemporary International Humanitarian Law

Its rules, like any laws, must be interpreted in a manner that embraces the reality of conflicts, rather than in a manner aimed at avoiding responsibilities. Because war retains a pattern of more or less organized and institutionalized violence although the level of organization varies , it is possible in all situations of conflict to identify the chains of command responsibility. This makes it possible to undertake negotiations that will include the application of, and respect for, humanitarian law.

A distinction is sometimes made between the rules regulating the conduct of war and those governing the right to relief, with The Hague Conventions seen as governing the way war is waged and the Geneva Conventions regulating the rights of non-combatants in times of armed conflict.

This distinction is artificial. In practice, the provisions of the Geneva Conventions and their Additional Protocols are not confined to organizing the delivery of relief to civilians. They also codify and incorporate numerous rules relating to the conduct of hostilities. For instance, they restrict or prohibit certain methods of warfare and establish the responsibilities of all parties to the conflict with regard to war crimes.

Humanitarian organizations, citizens, and political authorities need to be familiar with the provisions contained in the Geneva Conventions and the two Additional Protocols because they are the actors, by law and in practice, who organize and coordinate the responsibilities of civilian authorities and relief organizations in times of conflict.

International humanitarian law

Humanitarian law defends a right of action. Victims of conflicts are protected by the quality of relief actions carried out by humanitarian organizations. The quality of such actions depends on. To enable international humanitarian law to achieve its objective, rules and regulations have been developed around two axes: the responsibility of military commanders and the actions of humanitarian organizations. Humanitarian law establishes certain rules, responsibilities, and requirements that must be respected. Unlike international human rights law, international humanitarian law does not establish universal rights applicable to all individuals at all times.

Instead, the specificity of the four Geneva Conventions is that each one applies to a different category of protected persons, defining the minimum standard of treatment that must be respected for each category. Hence, the applicable law differs depending on whether the situation concerns an international or an internal armed conflict, an occupied territory or a besieged area.

It also differs depending on whether it concerns persons who are wounded or sick, civilians, women, children, internees, prisoners of war, and so on. In humanitarian law, the legal qualification that persons or situations may be given is a crucial judicial and political factor, since the rights of each individual depend on the definition of his or her status. To limit the risks of having individuals not be protected because they do not enter one of the categories set forth, humanitarian law enumerates minimum rules, as well as fundamental guarantees, that must be implemented and defended at all times, in all circumstances, for all those who do not benefit from a more favorable regime of protection.

Combatants are defined in the Third Geneva Convention as:. The definition of a civilian is framed in the negative. Any person that is not a combatant within the above definition is a civilian; if there is any doubt as to a person's status, they must be considered a civilian. The terrorists that are likely to be targeted for killing do not meet the requirements to be considered combatants.

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They are not members of the armed forces of a state participating in the conflict. While organized terrorist groups may have a command structure with an individual responsible for his subordinates, none of the other requirements are met. There is no fixed distinctive symbol, arms are not carried openly, and operations are not conducted in accordance with laws and customs of war.

In most instances, terrorist groups strive to achieve the opposite of these requirements. As members of organized terrorist groups do not meet the definition of combatants, they must be considered civilians. Civilians are legitimate targets only if they directly participate in hostilities and, even then, only for the period of time during which they are directly participating. The lawfulness of a targeted killing will be determined by its compliance with each of these three criteria: direct participation, in hostilities, for the period of participation. Unfortunately, none of these criteria are defined in LOAC.

Civilians only lose their protection under IHL if they take a direct part in hostilities. Civilians taking an indirect part in hostilities continue to enjoy protection. However, there is no accepted definition of taking a 'direct part' in hostilities. It is only during such participation that a civilian loses his immunity and becomes a legitimate target. Once he ceases to participate, the civilian regains his right to the protection under this Section, i. The more distant the correlation between the act and the harm, the greater the possibility that civilians will be targeted on suspicion of threat rather than immediacy of harm.

Unfortunately, the ICRC Commentary does little to clarify the required strength of the correlation or provide any objective criteria upon which it may be measured. Absent more certain guidance, the directness of civilian participation may be interpreted broadly or narrowly. In his expert opinion to the Court in PCATI , Professor Cassese suggests that 'direct participation' should be construed in an extremely narrow fashion.

This narrow construction of 'direct participation' is unsatisfactory to victim states, appears disconnected from the realities of conflicts such as the Intifadas , and potentially engenders disrespect for IHL. It is very difficult, if not impossible, for armed forces to identify an immediate threat. This is particularly so given that success for organized terrorist groups will depend on concealing the threat from state authorities until the harm has occurred.

Obviously, this increases the risk or threat faced by victim states.

The Principle of Distinction under International Humanitarian Law

Terrorists will have the best of both worlds as they will be protected civilians the majority of the time and only sacrifice this shield while actually carrying out a terrorist act. In addition, IHL may suffer as the distinction between civilian and combatant becomes less distinct. However, a narrow construction of 'direct participation' would allow civilians to become intimately involved in hostilities with only the briefest loss of immunity, if at all. This is an unacceptable conclusion to the victim states that would face additional imbalance in an already asymmetric conflict.

In effect, the Court took a functional approach and deemed that those civilians performing combatant functions are directly participating in hostilities. Amongst these forms of indirect participation are: selling food or medicine to the terrorist organization, providing general strategic analysis, general logistical support, and providing financial aid. Although some authors are critical of the Court's expansion of 'direct participation', [55] it represents a more balanced and practical approach than that of Prof. State authorities will have some freedom to act against individuals that are effectively participating as combatants without the requirement for an immediate causal link to a specific act.

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  6. Under a narrow construction of 'direct participating', the civilian-terrorist could only be targeted when actually planting a bomb or other terrorist act. The leaders and planners of terrorist organizations, typically distanced from such activities, would perpetually retain their civilian immunity. In practical terms, the PCATI decision's functional approach allows for terrorist leaders to be targeted in the same manner as officers in a state's conventional armed forces. It extends 'direct participation' throughout a terrorist organization's entire chain of command.

    While neither the list of direct participants nor indirect participants is exhaustive, the military commanders that will be required to make determinations on targeted killings will have far better direction. Ultimately, there is no fixed point upon which the directness of a terrorist's participation can be evaluated:. Treaty IHL does not define direct participation in hostilities, nor does a clear interpretation of the concept emerge from State practice or international jurisprudence.

    The notion of direct participation in hostilities must therefore be interpreted in good faith in accordance with the ordinary meaning to be given to its constituent terms in their context and in light of the object and purpose of IHL. Accordingly, it appears that any reasonable definition of 'direct participation' will suffice so long as state authorities act in good faith and respect the object and purpose of IHL. The manner in which President Barak interpreted 'direct participation' meets these criteria.

    Protection is still provided to civilians and those who indirectly participate, keeping with the purpose and object of IHL. Further, the Court imposed a heavy evidential burden on Israeli armed forces to verify that individuals are direct participants before they can be targeted. There is also no universally accepted definition for 'hostilities'. Under this definition, a terrorist is clearly engaging in hostilities at the time they are using or carrying a weapon. Interestingly, it is also possible to commit hostile acts without being armed. The Commentary is silent on whether this would include planning and orchestrating a terrorist attack.

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    Once again, in the absence of a universally accepted definition for 'hostilities', the only criteria is that the state have a good faith interpretation that respects the objects and purposes of IHL. The PCATI definition meets these criteria as it continues to distinguish illegitimate civilian targets from legitimate ones based on clearly identified categories of participation.

    The nature of 'hostilities' is reasonably interpreted so as to allow a balance between protecting civilian life and allowing for the necessity of military action against those preparing for hostilities. Perhaps most importantly, this definition of hostilities has been rightfully expanded to include acts committed against the civilian population. However, there is considerable controversy over the interpretation of this element.

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    Thereafter, as he no longer presents any danger for the adversary, he may not be attacked Phrased conversely, it would appear that a civilian-terrorists may be attacked for such time as they present a threat to the state. However, the definition is silent as to whether terrorist leaders and planners constitute such a threat. The Israeli Supreme Court noted the lack of consensus regarding the phrase 'for such time' and presented a spectrum upon which the term could be evaluated.

    The Court held that such a civilian is protected from the moment they detach themselves from the activity. The PCATI Judgment has been criticized for the expansive interpretation of the period in which a civilian may lose their protection. This concern is somewhat exaggerated. The Court imposed a strong evidentiary burden on the use of targeted killing.