UPEACE IHL Distance Session 3 Recorded Lecture final

Welcome to session three of our course on using Velo. In this session, according to our syllabus, we will talk about the means and methods of warfare. Unfortunately, however, as I noted last week, session two did not quite manage to deal with the law of targeting issues, especially the three operational principles, namely distinction, precaution, and proportionality. As a result, I'm afraid we need to dedicate approximately half of session three's lecture on such principles, so please bear with me.

Now, if you can imagine war that is perfectly sanitized, what we have at hand is a situation where: first, combatants and civilians are perfectly distinguishable from each other at all times; second, military objectives and civilian objects are similarly perfectly distinguishable from each other at all times; and thirdly, the means and methods of warfare used are perfectly capable of making such distinction at all times. If these things, if these three things held true, then the only principle that IHL would need would be the principle of distinction. Where there is one civilian death or the destruction of one civilian object, then that means by definition that the principle of distinction was breached. Then we can immediately proceed with the discussion about accountability.

Now, we know that war was never perfectly sanitized like that, and what that means is that it's not quite enough for IHL to stand on the principle of distinction alone when it comes to regulating attacks. Instead, IHL essentially concedes that inevitability of some genuinely unintended harmful consequences to civilians and civilian objects during attacks. What the law asks is then is is then to, uh, for the attacking party to not only try to adhere to the principle of distinction, but also to do two things. First, please, the law says, try to avoid causing civilian casualties, and in any event, if civilian casualties are inevitable, then please try to keep such casualties in some reasonable proportion to the military advantage that you are seeking from their attack that you are about to launch.

You can see in this way that the principle of distinction is perhaps something, something we might call the first-order principle on the law of targeting. The principles of precaution and proportionality are second-order principles in relation to the principle of distinction. Because of the inevitability of some instances that would not fit with the principle of distinction, the law has to provide some sort of a reasonable fallback position. So if you cannot do it, then there are, if you cannot ensure perfect compliance with the principle of distinction despite all your best efforts, then there are certain formal frameworks that would govern your best efforts. As you can see, the principle of, principles of precaution and proportionality are matters of best efforts, in other words, obligations of conduct rather than obligations of result.

Let us see in the next few minutes how these three operational principles on the law of targeting seek to regulate attacks. Article 48 of Additional Protocol I codifies the customary principle of distinction in attacks. There are two components to this principle of, of distinction. The first component in this principle is the obligation to distinguish between military objectives and civilian objects, and between combatants and civilians. That's the first component of this principle. The second component of the principle is, having distinguished between targets in this way, the attacking party is then obligated to direct its military operations exclusively against lawful targets, that is, military objectives and combatants. Although here we have to add some disclaimer or the qualifier to the fact that lawful targets when it comes to individuals are not limited to combatants, but also civilians directly participating in hostilities. I might even add that it's not even true that combatants are always targetable. We know from our past discussions that combatants have been placed or to come down are not actually targetable. In any event, you get the idea.

So the principle of distinction cannot be complied with unless you mean to distinguish between targets. And even if you mean to distinguish between targets, the principle still cannot be complied with unless you actually direct your military operations exclusively against lawful objectives. So despite the fact that it's a single principle and it's a very straightforward principle, I would say, given how IHL structures itself, it's not enough that you insist on distinction. The, the key part, although it's hard to say which of the two components is actually more important, I think they're equally important. One cannot meaningfully conceive of the principle of distinction unless one pays equal attention to the distinction part and also the directional part.

Now, as I said, one cannot always, even with the best efforts, comply with the principle of distinction. Because of that, we need to look into the principle of precaution. The principle of precaution is also a customary principle, but a large amount of it, or large ingredients, so we say, of the principle of precaution are codified in Article 58. Oh, I'm sorry, Article 57 of Additional Protocol I. Article 58 comes in a little later.

Article 57 of Additional Protocol I begins with this constant obligation of constant care. So it's a statement of a general attitude. It's not a substantive or it doesn't really give you anything concrete in terms of what you're supposed to do, but you have to always have in mind the well-being of the civilians that may be affected as a result of your military operations. That's basically what this obligation of constant care means. But then there are a number of specific actions, precautionary measures, that you are obligated to take before proceeding with an attack.

The first and most important precautionary obligation is to take all feasible measures with a view to verify that the target you are now looking at is indeed a military objective and not otherwise enjoying any special protection. Here, the key phrase is "doing everything feasible to verify." So the ultimate verification of the object as a military objective is not what this precautionary duty, in fact, requires. What is required is that you do everything feasible to verify it. And the feasibility of what you can do is an eminently, uh, circumstantially contingent notion.

If you are sitting, let's say, uh, in a capital somewhere in a western capital, discussing calmly with your other national counterparts from other, other states about on the thing on things like whether to target this or that building in, uh, the theater of operation or a joint military campaign, days and days in advance, you have the satellite images, you have the signals intelligence and human intelligence that you have gathered. So you have a wealth of information about, for example, this building is served as some sort of in some military capacity from nine o'clock to four o'clock on Saturdays with an X number of military personnel present. But on Sunday, it's totally deserted, with some janitors cleaning the hallway and so on and so forth, and the wind directions and the traffic around it. You have all the data you need in order to analyze whether this building does constitute a military objective at a time of your choosing. So then, in situations like this, the duty to do everything feasible with a view to verify that the target is indeed a military objective is a reasonable and quite exhaustive one, potentially, and that's what the law asks of you.

But when you find yourself in ground combat with distinctly limited information available to you, that is, contemporaneously available information is limited, and there's chaos, you have a split-second decision to make. For example, then what can you be expected to do in terms of doing everything feasible with a view to verify that the target you are looking at is indeed a military objective? Of course, we saw in this Danish movie, *War*, how difficult that actually is. Chief Patterson found himself in the midst of high-stakes, close-quarter combat. That's infantry conduct. There is no visual confirmation that is PID that would enable him to determine that Compound 16 is indeed a military objective, although we know from the clips that his colleagues have told him that the gunfire, the sound of the gunfire, did come from Compound Six. The key question here would be, is this the extent, the reasonable extent of what Chief Patterson could have done feasibly with a view to verifying that Compound Six is indeed a military objective? That is the key question when it comes to the bombing episode in the movie.

But then that's only one of the numerous precautionary measures that are expected of someone in Chief Patterson's position, indeed, in a position of any commander contemplating, planning, or executing an attack. You can go further down the list on Article 57 with a view to finding out what they are. For example, there is a, a precautionary obligation in the choice of means and methods of warfare with a view to avoiding or, in any event, minimizing collateral civilian casualties. Here too, there are interesting questions that arise. If there are a number of weapons available to you during hostilities, does this precautionary measure obligate you to choose the least injurious means and methods of warfare? And if, if it does, does it require you to choose that under all circumstances?

There's an inch, this was a point raised, this was a, a point of contention raised by a Dutch IHL lawyer, a great Dutch IHL lawyer, I might add, by the name of Fritz Karlshoven. Fritz Karlshoven called the notion underlying this, this particular interpretation of the choice of means and methods of warfare precaution, uh, analogous by drawing an analogy to the golfer and his golf clubs. So if you are on a golf course and you have the goal inside with the flag, you have the caddy who would bring you all sorts of golf clubs, and of course, the whole point of the golfing is that you choose the best club that would suit the circumstances of your shot. The gist of this story is that, according to Fritz Karlshoven, this is a kind of luxury that soldiers cannot always be expected to afford in the heat of combat. So it would be unreasonable and potentially suicidal to expect or to demand that the soldier in such circumstances be required to choose the least injurious, in other words, least injurious towards the civilians around or the civilian objects around the military objective that you are supposed to choose.

A similar, uh, arose during the 1999 Kosovo era bombardment campaign. If one party is rich enough and technologically advanced enough, advanced enough to, uh, procure and deploy high-precision smart bombs, but also, of course, you have older, shall we say, dumb bombs as well in your arsenal. Does IHL obligate such technologically advanced parties to first use up all of their high-precision weapons and only once you have exhausted such high-tech weapons would you then be able to resort to older, dumber varieties? The literature and prevailing opinion seem split on this. Some people would insist that yes, that's what this precautionary measure actually obligates the parties to do. Whereas many others contend that the choice of weapons, while it is generally governed by this, uh, precautionary obligation to avoid or to minimize civilian casualties, the ultimate choice of a particular weapon before, for example, you let the plane take off, is a matter that requires more considerations, more factors to be considered, such as efficiency, the display distribution, uh, the logistics, in other words, that have led up to the particular bomb being fitted with the aircraft, as well as tactical and operational considerations. So here too, the, the way in which one is supposed to interpret this avoidance/minimization measure as a matter of precaution is not necessarily as fun or determined to turn, determinative as one might expect.

And then there is, uh, what looks like, um, the principle of proportionality. It is common for IHL lawyers to distinguish, to keep these two principles separate, precaution proper and proportionality. As you can see from Article 57, at least Additional Protocol I does not appear to make that maintain that distinction as strictly. In any event, let's take a look at, uh, the, the precautionary measures by rate of proportionality. One is supposed to, uh, refrain from designing, deciding to launch an attack if, if it may be expected to cause excessive collateral damage, collateral damage that would be excessive in relation to the concrete and direct military advantage anticipated. Let me rephrase that. So the precautionary obligation to refrain from deciding to launch an attack kicks in if, if it becomes apparent that such an attack may be expected to cause excessively injurious collateral damage.

Some commentators have suggested that while this obligation to refrain from deciding to launch an attack is an important one, there is a missing precautionary measure, and that missing precautionary measure was in fact inserted into the ICRC's customary law. I happen to forget what the rule number was, but you'll find it. So shouldn't there be something between, uh, before the duty to refrain from designing into London about launch an attack kicks in? Wouldn't you be expected to ascertain actively and constantly whether the attack that you're contemplating may be expected to cause such, uh, critical damage? So rather than waiting until it becomes apparent, shouldn't you be actively seeking to ascertain whether it becomes, it becomes apparent?

So that's, according to a number of vital commentators, is a customary precautionary obligation not included in Article 57 of Additional Protocol I, but that should govern the, the attack sequence, the decision towards launching an attack. Once you have launched an attack, then a further precautionary duty kicks in, that is, either to cancel or to abort an attack if it may be expected to cause collateral damage that's excessive. Here too, how do we take of this cancellation or abortion, uh, obligation, obligation to abort? One might expect that modern technology has advanced to an extent where you can deactivate a missile mid-flight, for example. But I, for reasons I don't understand, apparently that's not always available. So once an attack is in progress, it is impossible to disengage or it is not, it is not always possible to disengage or to, to, to deactivate the ordnance, for example, that is approaching a point of time, a point of impact.

There are a couple more precautionary duties I want to mention. One is the choice of military objectives. If there are more than, if there are two or more military objectives available to you that you would consider engaging, then you must choose the one military objective that is likely to cause less collateral damage. I mean, I'm sorry, I need to add that if there are two or more military objectives that would give you comparable military advantage, then you must choose to engage the military objective that is likely to give you that cause less collateral damage. So that is some of the, I, I hope I covered most of the, uh, precautionary duties that are in place today, although there may, there will be some others that I have missed.

One footnote I should have inserted at the beginning of this particular lecture is the use of the expression "collateral damage" or "collateral casualties" or similar expressions. As you may have noticed, IHL, in fact, does not use the expression "collateral damage" or "collateral casualties." What it does use instead is a rather cumbersome and lengthy, although a technically more correct, uh, expression that is "incidental loss of civilian life, injury to civilians, damage to certain objects, or a combination thereof." That's what we colloquially mean by collateral damage or collateral casualties. So please bear that in mind when we discuss collateral damage.

Precaution is not simply a matter of those attacking. Precaution also governs the defending party, as it were, those who are on the receiving end of somebody else's attack. And Article 58 of Additional Protocol I codifies what such precautionary duties may contain. Just in a nutshell, the defending party is obligated to take feasible measures with a view to avoiding placing military objectives within densely populated areas where civilians are concentrated and to try to avoid leaving civilians in the vicinity of military objectives. It's interesting, uh, to observe that when the defending party is obligated to do this, the military objectives, as you may recall from last week's lecture, are what gives the defending party's opponent unique advantage. So by obligating the defending party to make sure that military objectives that would help your opponent are separate from the civilians and certain objects, IHL effectively asks you to facilitate your opponent's military operations. You may also recall from two weeks ago when I was trying to draw an analogy between war fighting and boxing. So there is a distinct element in IHL that seeks to facilitate the infliction of legitimate violence between opponents, and you are obligated sometimes to facilitate it yourself. Well, here is, uh, something that looks advantageous to your opponent. If, if the opponent destroys it, what that means is that you, you are duty-bound not to place civilians, so leave civilians around it. Similarly, you are not, you're duty-bound not to place such objectives in the midst of civilians.

Two consequences follow. If you fail to comply, as the defending party, fail to comply with this obligation, then your opponent will not be released from whatever precautionary duties that opponent continues to be bound by as the opponent proceeds with an attack. So the fact that you failed to comply with IHL does not release the oppo, and the attacking party from its own precautionary duties. The second consequence that follows is that if you do, if you deliberately place military objectives in the midst of civilians, for example, you are basically using the civilians as human shields. And that, although using human shields does not release the attacker from the attacker's own precautionary duties, you are committing a very clear and distinct IHL violation that is in addition to merely failing to, to, to avoid placing, uh, military objectives in the midst of civilians or failing to avoid placing civilians around military objectives. So that's how precautionary duties work.

When it comes to proportion, here too, the expression "proportion" or "proportionality" actually does not appear in IHL as far as attack is concerned. Instead, what the law speaks of is the collateral damage being excessive in relation to the military advantage. So it's more appropriate to call it "excessive injury to civilians and civilian objects" rather than "proportion." And it makes sense, doesn't it? Proportion suggests a sort of a band like this. So something could be disproportionate because it goes above the band, but something can also be dysfunctional or under-proportionate, if you will, if you go below the band. But surely IHL is not really concerned itself. IHL does not concern itself with situations where the collateral damage is well below the military advantage that the attacker is seeking, and it's all the better for the civilians, for sure. But it's not of concern to the, to IHL itself to say anything, uh, in particular about under-proportioning attacks. So what's of concern to IHL actually is an attack that is excessive, that is, only the upper, going above the band of proportion. So it makes sense for IHL to stick to excessiveness rather than proportion, which could go either over-proportionate or under-proportionate.

The trouble, the real trouble with proportionality is the fact that there are, it, it asks you to compare all apples and oranges. On the one hand, is this total sum of incidental loss of civilian life, injury to civilians, or damage to certain objects, or a combination thereof, and that is the kind of consequences that your attack would cause your opponents. In most, in most cases, that is to be compared with the direct and concrete advantage that you anticipate from your attack. Whereas the collateral damage column, perhaps, could be quantified in some way, the number of dead, injured, and if you could count civilian objects that have been damaged, although quantification is, is an extremely problematic exercise, I, I grant you that. How do you even quantify the concrete and direct military advantage that you anticipate? It's not impossible to come up with some sort of a number or quantity that you can meaningfully compare with the collateral damage. And yet, the principle of proportionality asks you to ensure that the collateral damage is not excessive in relation, the collateral damage that may be expected from your attack is not excessive in relation to the military advantage that you anticipate from your attack. So it's a, it makes sense as an idea, but when it comes to implementing proportionality, you run into all sorts of problems. And the cases that have, uh, arisen from hostilities situations and some other situations like occupation and so on have not really been able to clarify, uh, how you might solve this comparison, how you meaningfully compare different qualities and quantities.

One case I would mention in this regard is the Prosecutor versus Galić. It's an ICTY, the Yugoslav Tribunal case from 2001 or thereabouts. In that case, the collateral damage was the 36 or some, uh, civilian casualties, dead or wounded, or thereabouts, on the one hand, and nearly 17 military casualties on the other hand. So, as it turns out, the attack has produced arguably almost twice as many military casualties compared to the civilian casualties. Here, you can somehow quantify the number of people wounded or killed on both sides of the column equation. So you can come, or you become to some sort of measurable comparison. The judgment by majority ruling, in the end, managed to avoid this very uncomfortable number-crunching game and instead focused on the pro, the, the two key words that is, one on the one hand, collateral damage that may be expected from the attack, that appears in Article 17, uh, 57, and also the, the military advantage that is anticipated, that also appears in Article 57. So you compare what's expected, or what may be expected, on the one hand, and what you anticipate on the other hand. So once you liberate yourself from the outcome of an attack, sometimes you call it the impact analysis. You move to prospective expectations. So, clatter is the estimate. Then, at least in some people's minds, the fact that you're comparing dissimilar variables would become somewhat less problematic because then you can say plausibly, in some cases, that launching an attack, launching two, uh, artillery projectiles, as was the case in Galić, into a crowd of 200 people, although the 200 people contained a number of military personnel, would be clearly expected to cause incidental loss of civilian life or injury to civilian new civilians that is excessive in relation to the concrete and direct military advantage that the attacker anticipated, regardless of the actual outcome of the attack. So there is a sort of a way out of this uncomfortable number-crunching exercise that's often seen to seeing often that many people seem to imply in the proportionality analysis.

Before we leave this topic, I need to, uh, offer a piece of advice. When analyzing proportionality, one often sees in news outlets, uh, the, uh, stories involving what appear to be proportionality, disproportionate attacks. For example, I mean, we very often see how the IDF conducts military operations in Gaza, and numbers come up from such campaigns that show that the Hamas missiles launched into southern Israel killed or injured maybe 12 or 15, uh, Israeli civilians, whereas the IDF action in Gaza results in 200-500 casualty casualties, many hundreds of them civilians in Gaza. And you sometimes come across accusations that what this means that the IDF action is disproportionate. Fine, it may be disproportionate in some sort of an, in some intriguing, non-technical sense, but if you are, if you're claiming to, uh, if you're claiming disproportion within the meaning of IHL, then you realize that the comparison is wrong. Article 57 does not ask you to compare how many people are killed or injured on the part of one party vis-à-vis how many people are killed or injured on the part of the other party. That is not the comparison. The comparison expected under IHL is the hundreds of civilian casualties that the IDF has occasioned on the one hand, and whatever direct and military advantage that the IDF was seeking from their behavior, their operation in Gaza, that is the proper points of, uh, comparison when it comes to proportionality in attacks. So I would, I would, uh, urge you to be cautious about analyzing proportionality questions in attacks.

Now, if you look at these three operational principles in attacks, that is, distinction, precaution, and proportionality, roughly speaking, you can, course, you can relate, correlate those three principles with three types of attacks that that are unlawful under IHL. If you witness an attack that is an actual breach of the principle of distinction, we are typically talking about an attack that is deliberate. That is, an attacker knows that the target is a civilian object or a civilian person, and the attacker intends to engage the target as such, in, in knowledge, in the knowledge that the target is unlawful. Now, that is a deliberate breach of the principle of distinction. So the distinction, the principle of distinction corresponds to attacks that are deliberate.

The second type of unlawful attacks we see in IHL are indiscriminate attacks. Indiscriminate attacks are either attacks that are launched by parties who do not distinguish between targets. Essentially, you're looking at an attacker who doesn't care what it is that he or she is targeting. That's indiscriminate par excellence, if you will. But there are other kinds of indiscriminate attacks where the attacker does intend to target a legitimate or lawful military objective, but the means and methods of warfare that he or she uses are such that, uh, the attack cannot be properly directed at the military objective, or the effects of an attack of the, of the means and methods of warfare used cannot be limited by, as required by IHL. So if you have a very imprecise, uh, missile, unguided missile, and if you target, if you use that missile in an effort to target a particular military objective far away, are located in a city, then because the weapon is, uh, too imprecise in relation to the target that you have selected, that there is a serious risk of call landing in places other than the target and hurting civilians or destroying certain objects as a result, because the methods or means of methods of warfare chosen in relation to the target is incapable of being directed at it, it amounts to launching an indiscriminate attack. If you use chemical weapons or biological weapons, even while intending to engage exclusively a lawful military objective, because you cannot limit the effects of chemical weapons and biological weapons to lawful targets as required by IHL, you commit an indiscriminate attack as a result.

IHL somehow considers what we call disproportionate attacks as a species of indiscriminate attacks. We are now actually going through Article 51 of the Short Level I. Their indiscriminate attacks are said to include disproportionate attacks. But I have a problem with that because by definition, a disproportionate attack involves the proper selection or identification of a military objective. You actually do mean to engage on a military objective, and let's say you do what you can to limit the extent of collateral damage, but then if the collateral damage, uh, can be expected to be excessive in relation to the concrete military advantages anticipated, that's when you commit a disproportionate attack. So there is no deliberate intent to breach the principle of distinction, and there is often no indus, uh, no recklessness or no, let's say, disregard of the time, and oftentimes you may be even careful about the selection of weapons and so on, but the consequences nevertheless happen to be of a nature of a kind that would give you this expected collateral damage. So in my mind, because deliberate, indiscriminate, and critical, uh, disproportionate attacks involve very distinct sets of the attacker's state of mind, I would rather treat them as three different kinds, distinct kinds of unlawful attacks, rather than lumping the last two together into indiscriminate attacks, as Additional Protocol I does.

Our discussion of the three operational principles on the law of targeting, namely distinction, precaution, and proportionality, indicates that we cannot really make sense of them unless we also look at questions of means and methods of warfare. But what do we mean by means and methods of warfare? That's the first thing that we need to clarify. By means, we typically mean weapons, but not necessarily so. I think the best way to understand what we mean by means, the means of warfare, is to ask yourselves, with what do you fight? So the "with what" part of the question refers to the means of warfare. The methods of warfare are captured by questions like, how do you fight? So, given, for example, that you have this weapon or that weapon, how do you use them? Now, that's a method question. Although the methods of warfare are by no means limited to how you use your weapons, because there are questions of tactics as well. This is how we usually distinguish between means and methods of warfare.

So let's take a look at means of warfare first. So by this, we typically mean weapons. There are sometimes other, as I said, other considerations. For example, what we sometimes call environmental modification techniques. So the use of pesticides as a, basically as a weapon of sorts, in order to defoliate the forest and expose enemy positions. That was used most commonly in the Vietnam War and subsequently became the subject of a prohibition by a treaty.

The starting point for IHL is that the parties in the conflict do not have an unlimited right when it comes to choosing means and methods of warfare. It comes from the 1868 Saint Petersburg Declaration that we have touched on earlier, that is, two sections, two sessions ago, very briefly. So the preamble of the Saint Petersburg Declaration says that the only legitimate object that states should endeavor to accomplish during war is to weaken the military forces of the enemy. So there, there's already an implicit limitation on what the belligerent should or should not do. So the use, the employment of means, for example, according to the Saint Petersburg Declaration, that would uselessly aggravate the suffering of disabled men or to render their death inevitable, that is, the death of people who are already disabled but alive. These are the kinds of things that you should, you are not permitted to legitimately pursue anymore. So the kinds of means and methods that are, that would cause such, let's say, externalities, consequences that are immaterial to weakening the enemy, the military force of the enemy, is something that IHL has come to either prohibit or restrict.

This is the, uh, first, this is the principle that the first paragraph of Article 35 of Additional Protocol I codifies, but it's a very old customary principle. And from this principle of limited, not unlimited, right in the selection of means and methods of warfare, stems the more specific principle, shall we say, it's a prohibition, in fact. It's a prohibition against the use or employment of means and methods of warfare that are of a nature or calculated to cause what we call superfluous injury or unnecessary suffering. This also echoes this principle. This prohibition also echoes because the, the 1868 Saint Petersburg Declaration. So there we can see how the useless aggravation of the suffering of disabled men, remember, by definition, those men are already disabled, and therefore causing further pain or suffering serves no discernible military purpose. So the aggravation of such men, that is, which is useless, that is what IHL does not tolerate. Or the causing of unnecessary suffering, suffering that is more than what is inevitable or necessary in order to occasion disablement. So these are the extra bits that warfare should not need.

So if the weapon is either of a nature, when in fact the contemporary expression, as you can see in the second paragraph of Article 35, Additional Protocol I, is to prohibit the use of weapons, the means and methods that are of a nature. A slightly older instrument, well, it's actually much older, 1907 Hague Regulations on Land Warfare, prohibits the use of means and methods of warfare that are calculated to cause superfluous injury or unnecessary suffering. But, um, we now consider these expressions basically synonymous with each other. So if a weapon is of such a nature, then it is prohibited. But it's a very general statement. It's very, it's oftentimes considered difficult, if not impossible, to determine what kind of, uh, suffering is unnecessary. Now, this is particularly the case because suffering is seen as an eminently subjective sentiment, and it's very hard to determine when somebody's suffering is unnecessary, as you can imagine. So compared to that, injury is perhaps a little more measurable than suffering. Injury can be objectively determined, or it's more amenable to objective determination than say suffering, and the superfluousness of it is more tangible, perhaps. But even there, because, uh, there is no gold standard when it comes to determining the unnecessary, the lack of necessity over suffering, or somebody's suffering, or, uh, the superfluousness of somebody's injury, the, in most cases, weapons have come to be prohibited or restricted in their use in warfare through the adoption of treaties that are specifically dedicated to their prohibition or restriction.

The oldest such, uh, instruments under international law are those, um, concerning the use of poison weapons, and also the 1925 Geneva Protocol on, uh, biological, uh, weapon, and I'm sorry, gas, but then it also contains provisions concerning some biological weapons. And then more recently, we have a number of, uh, treaties: the 1972 Biological Weapons Convention, the 1930, 1993 Chemical Weapons Convention. These are all treaties that are specifically dedicated to prohibiting certain types of weapons on grounds of their nature to cause superfluous injury or unnecessary suffering. Determining such nature is not, no longer, let's say, situation-dependent, because the treaty has determined that these are such weapons of such a nature, the treaty goes on to prohibit them.

There is a parallel track, as it were, when it comes to certain conventional weapons. The CCW framework of 1980. There you have a number of protocols adopted that either seek to prohibit the use of certain weapons or restrict the use of certain weapons on similar grounds. In fact, the CCW framework specifically refers to weapons that are of a nature to cause superfluous injury or unnecessary suffering. But, uh, because certain types of weapons, such as incendiary weapons, are seen to have some military value depending on how they are used, their use is not comprehensively prohibited, unlike biological weapons or chemical weapons or what we call permanently blinding laser weapons.

More recently, we have seen a rise or growth in civil society-driven initiatives to prohibit certain types of weapons that are deemed to be of this nature. Most notably, we have the, the Anti-Personnel Landmine Convention, and also the Cluster Munitions Convention. And just, uh, three years ago, the General Assembly adopted a prohibition, the Treaty on the Prohibition of Nuclear Weapons. Although this latter convention remains to be seen when it comes to attracting meaningful ratifications by nuclear weapon states or states under their umbrella. These are seen as attempts to bring this sort of treaty-based comprehensive prohibition to weapons that are deemed of a nature to cause superfluous injury and unnecessary suffering, so that their unlawful nature doesn't depend on how they happen to be used in this or that given set of situations.

The trouble begins when we do not have specific treaty instruments that are dedicated to prohibiting or restricting certain weapons. Therefore, that position is that we have to go to the customary principle of superfluous injury or unnecessary suffering. And as I said earlier, it's a notoriously difficult principle to apply or interpret and apply so that you can say that this weapon, although not subject to any particular treaty prohibition, is nevertheless customarily prohibited because it is of a nature to cause such, uh, injury or suffering. That has not been, this kind of argument has, to the best of my knowledge, not been successful when it comes to prohibiting a weapon or restricting a weapon separately from the IHL specific preoccupation when it comes to using certain means, namely weapons of warfare.

There is a separate body of international law that concerns itself with disarmament. We are not specifically looking at the law of disarmament. Disarmament is a much wider body of law. When it comes to the life of a weapon, it starts from development to stockpiling to transfer to use to decommissioning to destruction, and interstate cooperation and remedying the suffering of people affected by the residual effects of weapons and so on. So it has a much wider scope when it comes to this horizontal life of a weapon, whereas IHL is focused on this one moment, as it were, that is, use of weapons in warfare. So we should not confuse ourselves with disarmament discussions concerning certain weapons on the one hand, and whether the weapon being discussed in the context of disarmament are per se prohibited or restricted in IHL, because these are two distinct, albeit clearly related, topics.

Let us move on to methods. So, as is the case with weapons that cannot be placed under any specific treaty prohibition or restriction, other techniques that are used in warfare are eminently questions of methods of warfare. So even a weapon that would otherwise be, otherwise escape treaty-based international prohibition, may show up again under the heading of methods and become prohibited or become unlawful to be used, depending on the circumstances. So the classic discussion that we have witnessed, witnessed in this regard, is, uh, in the 1996 Nuclear Weapons Advisory Opinion, where nuclear, certain nuclear, uh, armed states such as the United Kingdom and the United States argued successfully before the International Court of Justice that one could conceive of low-yield tactical nuclear weapons used in compliance with the principle of distinction, precaution, and proportionality. For example, a lower-yield nuclear weapon can be deployed in compliance with IHL against a large military base in the middle of a desert, which contains nothing but military objectives, mind you. In those days, the environmental, uh, aware, the environmental dimensions of events like that were in their embryonic stage. It wasn't altogether absent, as you can see from the advisory opinion itself, but it wasn't really sort of understood in this more all-encompassing, all-encompassing way we take for granted today.

So in this case of a military base in the middle of a desert, obviously the environment, the, the radioactive particles may be just blown away by the wind and carried on to some other variants. But that was not really the relevant point of illustration when it comes as far as the nuclear weapon states were concerned. Another example used was the so-called nuclear depth charges. So you could have, um, a depth charge, nuclear-powered, nuclear depth charge, which is a, basically an anti-submarine weapon, which detonates at a certain depth underwater. So what happens is that instead of hitting an enemy submarine directly, because, uh, these depth charges are really meant to hit submarines directly, what it does, what they do instead is to create shock waves that would knock everybody out within the submarine, oftentimes fatally, and puncture the hull of the submarine and lead to its disablement and destruction. Because of the enormous pressure around the, the hull of the submarine, if you use a low-yield nuclear depth charge, the effect will be all the more, uh, or the greater because of the shock wave that a nuclear detonation underwater would create. Here too, the UK and the US argued that this could conceivably be done in compliance with IHL's distinction, precaution, and proportionality requirements. Yes, perhaps. But again, the nuclear waste that will be left in that area of the sea might cause more widespread environmental damage later on. So the discussion was a bit, again, a little odd from today's perspective. It's that was done, uh, more than 20, it's almost a quarter of a century ago, so the awareness is different in quality from that we have today. Nevertheless, so conceivably, a weapon not necessarily prohibited under international law might still be prohibited if used in a way that violates distinction, precaution, or proportionality. And this is where, uh, some, weapons have come, some weapons have been found to be unlawful circumstantially, at least.

So this unguided rocket missile used by the Bosnian Serb forces against the city of Zagreb, it's in the case of the Prosecutor versus Martić, was found to be unlawful, involving indiscriminate attack against the city of Zagreb, because even if you granted the defense argument that there were military objectives in the city at the time, the methods used by Mr. Martić's forces involving unguided, imprecise rocket launchers amounted to launching an indiscriminate attack, and therefore it was unlawful. So this is how sometimes a weapon gets caught, as it were, although they are not, it's not specifically prohibited as such under international law.

Let us move to our last topic, that is, methods of warfare. As I mentioned earlier, some of the means discussions would inevitably seep into our methods discussions if we were to focus on how weapons happen to be used in the context of attacks. But besides weapons that can be seen in both ways, there are, uh, methods questions that do not involve weapons. So let's look at four examples in particular.

The first is the denial of quarter as a method. So the way it used to work in, in the past is that, let's say you are in a rush on a march, and you are engaged in, in a kind of battle where speed is of the essence. So you need to stay mobile. Now you have an enemy who is getting increasingly weaker, and it will be incumbent upon you to capture and take this person prisoner. But because you, you want to stay mobile, you find it a, a cumbersome and, uh, inconvenience to have to capture this person and to remove him into the, uh, out from the zone of combat into the rear area. So you, it might be tempting for you to deny quarter, that is, to order that no prisoner, no, uh, no prisoner shall be taken alive, and to proceed, uh, with your military operation on that basis. It used to be, uh, tolerated because there was a great deal of military necessity seen in this kind of practice. But nowadays, it is categorically prohibited. So the humanitarian considerations, shall we say, prevailed. The humanitarian consideration, the condemnation of such inhumane practice, prevailed over the perceived military needs to permit such kind of cruelty based on this experience on the battlefield. So it is now categorically prohibited to deny quarter.

There is a slight occasional and slight confusion when it comes to discussing the denial of quarter in connection with declining to accept offers of surrender. Of course, denying quarter is that no one shall be alive, no, there shall be no survivor left. That is quite something else. If you think that refusing to accept surrender does not have to lead to the surrendered person's death, you may simply refuse to continue fighting yourself and withdraw, leaving the person who had offered to surrender to his own fate. Although that may amount to breaking some other rules of IHL, but that's another matter. So the two are not synonymous with each other, in not necessarily synonymous with each other.

The next example I had, uh, when illustrating how IHL tries to regulate methods, is the siege and starvation. Somewhat surprisingly, in my view, a number of vital practitioners somehow feel that siege is a prohibited method of warfare. But the fact is that it is not per se so. It is lawful in principle to lay a siege to a locality. Similarly, it is lawful to lay a blockade to a port. Whereas it remains lawful to besiege or blockade an enemy location, it is now prohibited, that's because of Additional Protocol II, excuse me, Additional Protocol I, to use the starvation of civilians as a method of warfare. So if you think about how sieges used to work, or blockades for that matter, what you do is you surround a locality and you cut off all communication, movement, and of people and supplies getting in or out of the, of the, of the locality that is under siege. So the hope was typically that the people inside would get increasingly hungry and starve, and especially because the military defenders of the, of the locality, locality would, uh, typically sort of divert the foodstuffs from the hands of the civilians. The civilians are there to left to starve, and that would create pressure on the part of those defending the locality to consider surrendering. So starving civilians was, in a way, part and parcel of siege warfare and blockades. In fact, up until, I would say, at least the end of the Second World War, it was not even unlawful to, for the besieging party to prevent civilians leaving the besieged locality by shooting at those fleeing civilians and forcing them back into the besieged locality. This actually happened at, um, Leningrad during the siege of Leningrad by the Germans, and the Nuremberg Tribunal famously declined to, to declare that unlawful. Now, that was then. Today, using starvation of civilians as a method of warfare is unlawful. What that means is that if you want to seize a place, you either have to let the civilians trapped inside go, or you have to let humanitarian consignments and relief goods go in to the besieged locality, so that the civilians are not starved. Some people have, uh, come to the conclusion that this effectively renders siege warfare unlawful, because it's very hard to imagine, although not entirely unthinkable, to engage in siege warfare without civilians inside. If you seize, besieged a military garrison, for example, that would be conceivable, because starving enemy combatants as a method of warfare is not prohibited at all. That's a totally lawful means of methods of warfare. So what becomes problematic is that if you do the same thing to the civilians, then you are breaking a treaty.

The third example I wanted to illustrate in today's discussion is deceptions. Deceptions are indeed everywhere in war. Some might even say that it's, it's how you, how well you deceive your enemy is, in fact, essential when winning a war. And indeed, trying to deceive your enemy is often times lawful. We call them the ruses of war. Ruses of war, for example, by, um, spreading propaganda that your military commanders have surrendered and so on and so forth, although that is not actually true, that's totally permissible as a ruse of war. You might engage in diversion operations so that the.

The enemy is forced to divert their assets, his assets accordingly. In fact, when in fact, you are you are intending to launch the main assault from behind.

The D-Day landing is, um, is an elaborate, it involved elaborate ruses of war when the Allied powers successfully induced the Germans into believing that the landing site was not at Normandy but far farther north in France. So that's lawful.

What is unlawful is when deception involves, uh, the taking advantage of IHL protection. So if you feign, uh, incapacitation, let's say you pretend you are out of the fight by lying, uh, pretending to be wounded or sick, and you wait for your enemy to approach you because you are giving, inviting your enemy to believe that you are entitled to protection under IHL, and your enemy is obligated to extend protection to you with the intention to betray that trust. And if you either kill, wound, or capture your enemy by resorting to this kind of, uh, deception, that is abusing IHL protection, then you are committing perfidy. And perfidy is unlawful and it's a war crime if you do it.

The deception, unlawful deception, can go both ways. You may pretend to be protected under IHL, such as by feigning civilian status or by feigning out-of-combat status. But you may, for example, raise a flag of truce, the white flag, and indicate to your enemy that you are, you are prepared to negotiate, to speak. And your enemy takes that in faith, good faith, and starts approaching you without hostile intention. Now, if you then open fire, you are committing, you are acting perfidiously because the white flag, the flag of truce, is protected under IHL.

Some other types of deception are also unlawful, although they may not involve your perfidious intent to betray trust. For example, abusing, improperly using the red crest, Red Cross emblem, or the United Nations, and or the emblem of a neutral power is unlawful, uh, even if it doesn't matter whether you, you have perfidious intent or not. The mere abuse or the improper use is itself a violation of IHL. And that's also because these protected emblems are there to facilitate the provision of humanitarian assistance and neutral protection. So if you undermine the institutions set up by IHL to extend protection, then you are threatening the integrity of the law itself.

The last one example of deception that I want to mention is the improper use of enemy uniform. We talked about this at our first session because it does not, it's one of those violations of IHL that does not involve humanity, or it does not seem to involve humanity because enemy, enemy uniforms are not per se protected under the law, nor are they associated with any humanitarian, obvious humanitarian purposes. Violent, the abuse, improperly using enemy uniform is not perfidious in that way because you don't invite the confidence of the enemy that you are protected or he is protected under IHL with an intention to betray that trust. It just happens that it's, as I said earlier, it's unchivalrous, it is unfair, it's unprofessional, it's unbecoming of you as a combatant or a soldier, an honorable soldier. That's why IHL prohibits the improper use of enemy uniforms.

Finally, a few words about what we call belligerent reprisals. Belligerent reprisals are a complex institution of IHL. If your enemy breaks IHL, or if you allege that your enemy breaks IHL, there are a number of things you can do in response. One of them is to resort to military reprisals. And if you do this, you deliberately break certain rules of IHL in relation to your enemy. And that's because the enemy broke the law first. The idea behind military reprisals is that you are, or you ought to be given some sort of formal techniques or remedies with a view to compelling your opponent back, your with a view to compelling, compelling your delinquent opponent back into compliance with IHL, or to secure, uh, reparations for the injury you suffer, the damages you suffer at the hands of your enemy's unlawful behavior. So it's a, it's an instance of what we call self-help. You are helping yourself with your rights under IHL, you're enforcing your IHL rights, as it were.

But there are stringent conditions attached to the exercise of belligerent reprisals. For example, there has to be a prior breach of IHL by your opponent, otherwise you wouldn't call it reprisals. Second, you have to warn your enemy that you are going to resort to belligerent reprisals unless the enemy ceases this despicable behavior. Second, the resorted military reprisals would have to be declared publicly. There are no such things as secret, secret reprisals. The whole point is to force your enemy to stop breaking the law, so you have to do it publicly. And you have to make the decision to resort to military reprisals at the highest level of your government, rather than leaving it to the decision of the frustrated field commander, for example, because it engages the prestige and the responsibility of the state itself that suffers injuries at the hands of the enemy. Decisions to resort to military reprisals need to be taken at the highest level of the government.

There's also the requirement of strict proportionality between the kind, between the, um, the extent of your IHL breach with the breach that your enemy has committed. So it's basically tit-for-tat, in a manner of speech. You cannot do more violations than the enemy has done himself or herself. And there is the immediate obligation to cease your belligerent actions as soon as the enemy ceases his or her unlawful action, or as soon as you have secured reparations for the damage you seek. So it's a very strict, uh, limited set of circumstances that permit to resort to belligerent reprisals.

But it's a very controversial technique. You may, it of course, it doesn't sort of take rocket science to imagine how, first of all, there is no binding third-party arbiter that determines whether your opponent has indeed broken IHL. It's what you allege. And if you resort to belligerent reprisals based on your allegations, the chances are that your opponent does not accept your allegation that he has broken IHL. First, instead, your opponent is likely to see what you assume as belligerent reprisals as the first violation of IHL, and that might make your enemy feel entitled to resort to belligerent reprisals against you. So because there is no third-party referee in IHL, military reprisals are uniquely susceptible to counter reprisals and counter-counter reprisals and counter-counter-counter reprisals and so on and so forth. So although accepted in principle as a legal technique and therefore as a method of warfare, it is vulnerable to spiraling out of control.

This is a highly contested technique. In fact, there is a decision of the ICTY, the Hague sludge, I mean, that purports to declare that belligerent reprisals are unlawful in general, although again, the commentators have come back, pushed back on this quite vigorously and defended the institution of military reprisals in principle. Although the scope of permissible belligerent reprisals is shrinking fast. So, for example, anyone protected under the four Geneva Conventions of 1949 cannot be subjected to belligerent reprisals, nor can the objects protected under the four Geneva Conventions be subjected to belligerent reprisals.

One contentious, contentious area that remains unresolved is if you look beyond Additional Protocol I as a treaty now, that was intercustomary. Can a party resort to military reprisals against civilians during hostilities in the event that your enemy breaks IHL? Additional Protocol I prohibits subjecting civilians to belligerent reprisals. But because that provision does not quite enjoy the status as reflecting underlying customary IHL, some states have objected, including the United States, France, Israel. I'm missing some other countries, but these are the most well-known examples. So they insist on retaining the customary entitlement to resort to military reprisals against civilians during hostilities if necessary.

The last known, uh, instance of military reprisals against civilians that were alleged is in the context of the Iran-Iraq War of the 1980s. But since then, it has not been, at least I'm not aware of any more contemporary instances where belligerent reprisals against civilians in hostilities were specifically alleged. But these are the some of the, uh, interesting and distressing, sometimes aspects of means and methods of warfare under IHL. And this also concludes the conduct of hostilities half of this course, as it were. When we return next week for session four, we move from the conduct of hostilities paradigm to the protection of war victims paradigm. So now that we have dealt with major aspects of how people fight, eligible people fight, we will start looking at what IHL asks you to do when it comes to humanely treating and protecting victims of war whose business it is not or no longer is to fight.