Armed Conflicts

 Common Article 2 of Geneva Conventions-

Convention shall apply to all cases of declared
war or of any other armed conflict which may
arise between two or more of the High
Contracting Parties, even if the state of war is
not recognized by one of them.
The Convention shall also apply to all cases of
partial or total occupation of the territory of a
High Contracting Party, even if the said
occupation meets with no armed resistance.
 Declaration of war is not necessary for existence
of an armed conflict.
 IHL comes into play whenever hostilities reach a
certain threshold.
 In Prosecutor v. Tadic (ICTY, 1995)- Appeals
Chamber confirmed that ‘for there to be a
violation of IHL, there must be an armed conflict.
An armed conflict exists whenever there is a
resort to armed force between States or
protracted armed violence between governmental
authorities and organized armed groups or
between such groups within a State’.
 An armed conflict involving non-state groups
arises only if the violence is protracted and the
non-state groups are organized.
 Protracted Armed Violence
– contrasts with banditry, unorganized and
short-lived insurrections.
- In Juan Carlos Abella v. Argentina (1997)-
IACHR stated that an armed conflict must be
contrasted with ‘disturbances with no concerted
intent and isolated and spordiac acts of
violence’. Situations like violent civil demonstrations,
bandits holding holding hostages for ransom and
political assassinations are falling short of armed
conflict. Here, an armed conflict had occurred,
even though the skirmish only lasted for 30
hours in total because of the ‘concerted nature of
the hostile acts undertaken by the attackers, the
direct involvement of governmental armed forces
and the nature and level of the violence’.
 - In Abella case, IACHR also noted that the
case involved a ‘carefully planned, co-
ordinated and executed’ armed attack against ‘a
quintessential military objective- a military
base’. Cited the ICRC recommendation that the
rules of IHL should be applied as widely as
possible.

- In the Haradinaj case (Trial Chamber,

2008), ICTY expressed that the protracted
criterion referred more to the intensity of the
conflict than to a concept of duration for NIAC.
 Organized Armed Groups
- intended to distinguish armed
conflicts from sporadic outbreaks of violence
such as riots and demonstrations.
- In Tadic case, the ICTY observed that
Bosnian Serb forces exhibited various
indica of organization, including
operating the command of the Bosnian
Serb administration and occupying a
determinate region.
- In Prosecutor v. Haradinaj case (2008),
the ICTY viewed the following factors as
indicative of organization:
a) the existence of command structure and
disciplinary rules;
b) control of a determinate territory;
c) access to weapons, equipment and military
training; and
d) ability to define military strategy and use
military tactics.
 Types of Armed Conflict
- IAC (armed conflict between States)
- NIAC (armed conflicts between governmental
forces and insurgents or between armed
groups)
Rules of Conduct of Hostilities
 There are three basic rules that regulate the way
in which a party to an armed conflict may carry
out military operations. These are the rules on
distinction, proportionality and precautions.
 They aim to protect civilians against the effect of
hostilities.
 In addition to these rules, there is the prohibition
against causing superfluous injury or unnecessary
suffering, which protects combatants and other
legitimate targets of attack and prohibition on
indiscriminate attacks.
 These rules have been codified notably in
Additional Protocol I. They exist in customary IHL
for international and non-international armed
(i) Distinction
 The basic rule of distinction requires that the
parties to an armed conflict distinguish at all
times between civilian persons and civilian
objects on the one hand, and combatants and
military objectives on the other.
 A party to an armed conflict may direct an attack
only against combatants or military objectives.
 Neither the civilian population nor individual
civilians may be attacked unless and for such
time as they directly participate in hostilities.
 Attacks must be strictly limited to military
objectives and may not be directed against
civilian objects.
 Military objectives are limited to those objects
that by their nature, location, purpose or use
make an effective contribution to military action
and whose partial or total destruction, capture or
neutralization, in the circumstances ruling at the
time, offers a definite military advantage.
 Typical military objectives are establishments,
buildings and positions where enemy
combatants, and their material and armaments,
are located, and military means of transportation
and communication.
 When civilian objects are used for military
purposes (e.g. a civilian train that is used to
transport weapons and combatants) they may be
regarded as military objectives.
Direct Participation in Hostilities
 Civilians are protected against attacks, unless and for
such time as they directly participate in hostilities. To
clarify what this means in practice, the ICRC
conducted several meetings of experts at which this
notion was discussed. In 2009, the ICRC published a
document based on these discussions: Interpretive
Guidance on the Notion of Direct Participation in
Hostilities under International Humanitarian Law.
 Interpretive Guidance stipulates that civilians are
considered to be participating directly in hostilities
when they carry out specific acts as part of the conduct
of hostilities between parties to an armed conflict.
 In order to qualify as direct participation in hostilities,
a specific act must meet the following criteria
cumulatively:
1. The act must reach a certain threshold of harm. This
is the case when the act will likely adversely affect the
military operations or military capacity of a belligerent
party. It could also be the case when the act will likely
injure or kill civilians or render combatants hors de
combat or will destroy civilian objects.
2. 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 that act
constitutes an integral part.
3. There must be a belligerent nexus. This means that
the act must be specifically designed to directly cause the
required threshold of harm in support of a belligerent
party and to the detriment of another.
 Article 48 of Additional Protocol I – parties shall at all
times distinguish between civilian objects and military
objectives and shall direct their operations only against
(ii) Proportionality

 Attacks directed against a combatant or a

military objective must be in accordance with the
proportionality rule.
 It is prohibited to launch an attack that is likely
to cause incidental loss of civilian life, injury to
civilians, and/or damage to civilian objects that
would be excessive in relation to the concrete
and direct military advantage anticipated.
 That is, a military objective may be attacked only
after an assessment leading to the conclusion
that civilian losses are not expected to outweigh
the military advantage foreseen.
 Article 51(5)(b) of Additional Protocol I – prohibits
attacks which may be expected to cause
incidental loss of civilian life, injury to civilians,
damage to civilian objects, or a combination
thereof, which would be excessive in relation to
the concrete and direct military advantage
anticipated.
(iii) Precautions/Military Necessity
 A party to an armed conflict must take constant
care to spare civilians or civilian objects when
carrying out military operations. The party
conducting an attack must do everything feasible to
verify that the targets are military objectives.
 It must choose means and methods of attack that
avoid, or at least keep to a minimum, the incidental
harm to civilians and civilian property.
 Party making an attack is permitted to use only
that degree of force required to achieve the
anticipated military objective that will result in
minimum loss of life and property.
 Article 23 of Hague Regulations – forbids parties
from seizing or destroying enemy property, unless
imperatively demanded by the necessities of war.
 Effective warning must be given of attacks that
may affect the civilian population, unless
circumstances do not permit.
 Precautions must also be taken against the
effects of attacks. For example, military
objectives must not, as far as possible, be
situated in the vicinity of civilian populations
and civilian objects.
(iv) Prohibition against causing superfluous
injury or unnecessary suffering
 Employing weapons, projectiles and material and
methods of warfare of a nature to cause superfluous
injury or unnecessary suffering is prohibited.
 This prohibition refers specifically to combatants.
 Weapons of certain kinds are prohibited because they
harm combatants in unacceptable ways.
 Although the rule is generally accepted, there is
disagreement about the proper way to decide whether a
weapon causes superfluous injury or unnecessary
suffering.
 The International Court of Justice defined unnecessary
suffering as “harm greater than that unavoidable to
achieve legitimate military objectives” (Legality of the
Threat or Use of Nuclear Weapons, Advisory Opinion,
1996).
 Article 22 of Hague Regulations – ‘the right of
belligerents to adopt means of injuring the
enemy is not unlimited’.
 Article 35(2) of Additional Protocol I – ‘it is
prohibited to employ weapons, projectiles and
material and methods of warfare of a nature to
cause superfluous injury or unnecessary
suffering’.
(v) Prohibition Against Indiscriminate Attacks
 Derived from the principle of distinction.
Indiscriminate attacks are prohibited under Article
51(4) of Additional Protocol I. Attacks are
considered indiscriminate if they:
•are not directed at a specific military objective
(e.g. a soldier firing in all directions without
aiming at a particular military objective, thus
endangering civilians)
• employ a method or means of warfare
that cannot be directed at a specific military
objective (e.g. long-range missiles that cannot be
aimed precisely at their targets)
• employ a method or means of warfare, the
effects of which cannot be limited (e.g. a 10-
tonne bomb used to destroy a single building).
 Means and methods of warfare
 “Means” relates to all types of weapons and weapons systems,
and “methods” relates to the way in which such weapons are
used, as well as any specific, tactical or strategic, ways of
conducting hostilities that are not particularly related to
weapons.
 General Limitations on the Means And Methods of Warfare are:
(i) Prohibitions on causing unnecessary suffering and
superfluous injury
 Article 35 of AP I: In any armed conflict, the right of the
Parties to the conflict to choose methods or means of
warfare is not unlimited. It is prohibited to employ weapons,
projectiles and material and methods of warfare of a nature
to cause superfluous injury or unnecessary suffering.
 Stems from the St Petersburg Declaration, which stated
that “the only legitimate object which States should
endeavour to accomplish during war is to weaken the
military forces of the enemy … [and] that this object would
be exceeded by the employment of arms which uselessly
aggravate the sufferings of disabled men, or render their
 Using weapons of a nature to cause superfluous
injury or unnecessary suffering is a war crime under
Article 8 of the Rome Statute.
 The ICJ acknowledged the primacy of the principle in
the Nuclear Weapons Advisory Opinion:
“The cardinal principles contained in the texts constituting
the fabric of humanitarian law are the following … it is
prohibited to cause unnecessary suffering to combatants: it
is accordingly prohibited to use weapons causing them such
harm or uselessly aggravating their suffering … States do
not have unlimited freedom of choice of means in the
weapons they use … In conformity with the aforementioned
principles, humanitarian law, at a very early stage,
prohibited certain types of weapons either because of their
indiscriminate effect on combatants and civilians or because
of the unnecessary suffering caused to combatants, that is
to say, a harm greater than that unavoidable to achieve
legitimate military objectives … these fundamental rules are
to be observed by all States … because they constitute
intransgressible principles of international customary law.”
The rule on superfluous injury and unnecessary
suffering is intended to restrain the suffering inflicted on
opposing combatants, rather than civilians and are not
assessed in IHL from a purely medical point of view.
The ICRC states that it is forbidden to employ weapons,
projectiles, substances, methods and means which
uselessly aggravate the sufferings of disabled adversaries
or render their death inevitable in all circumstances.
Injuries covered by this phrase to be limited to those
which were more severe than would be necessary to
render an adversary hors de combat.
Dinstein notes, a weapon is not banned on the ground of
‘superfluous injury or unnecessary suffering’ merely
because it causes ‘great’ or even ‘horrendous’ suffering
or injury. Rather, it is that these injuries are excessive in
relation to the military advantage achieved.
ICJ defined unnecessary suffering as “a harm greater
than that avoidable to achieve legitimate military
objectives.”
 (ii) Prohibitions on indiscriminate means and
methods
 Article 51(4) of AP I states:
Indiscriminate attacks are prohibited. Indiscriminate attacks
are:
(a) those which are not directed at a specific military objective;
(b) those which employ a method or means of combat which
cannot be directed at a specific military objective; or
(c) those which employ a method or means of combat the
effects of which cannot be limited as required by this Protocol.
 The prohibition on means and methods that are deemed
indiscriminate is considered customary international law in
both international and non-international armed conflicts.
 Breach of the prohibition is a war crime under the Rome
Statute of the ICC.
 ICJ: Parties to a conflict may not use weapons that are
incapable of distinguishing between civilian and military
targets.
 Obligation to assess the legality of new means and
methods of warfare
 Article 36 of Protocol I obliges parties to the Protocol
to review the legality of any newly-developed
weapons prior to their employment:
In the study, development, acquisition or adoption of a
new weapon, means or method of warfare, a High
Contracting Party is under an obligation to determine
whether its employment would, in some or all
circumstances, be prohibited by this Protocol or by
any other rule of international law applicable to the
High Contracting Party.
 The determination of the legality of a particular
weapon is to be made on the basis of normal use of
the weapon as anticipated at the time of evaluation.
 States are not required to foresee or analyze all
possible misuses of a weapon, for almost any weapon
can be misused in ways that would be prohibited.
 Specific Weapons Regime

(i) Explosive and dum-dum bullets

 1868 St Petersburg Declaration- bans the use, in both land and
naval warfare, of projectiles that weigh less than 400 grams and
that are either explosive or charged with fulminating or
inflammable substances.
 ICRC CIHL Study affirms that State practice since the adoption
of the Declaration has modified the obligations it contains, such
that anti-personnel use of the bullets is prohibited in both
international and non-international armed conflicts, but that
the use of the bullets in an anti-materiel capacity is not
prohibited.
 The Hague Declaration of 1899 bans the use of bullets “which
expand or flatten easily in the human body, such as bullets
with a hard envelope which does not entirely cover the core or is
pierced with incisions.”
 The use of such expanding bullets is a war crime under the
Rome Statute and is considered unlawful under the customary
law of both international and non-international armed conflicts.
(ii) Booby-traps
 Protocol II of the Conventional Weapons Convention,
1980 prohibits the use of booby-traps, defined in Article
2(2) as “any device or material which is designed,
constructed or adapted to kill or injure and which
functions unexpectedly when a person disturbs or
approaches an apparently harmless object or performs an
apparently safe act.”
 Art. 6(1)(b) of the Protocol II outlines an expansive list of
objects that are prohibited from being booby-trapped,
such as protective emblems (like the Red Cross or Red
Crescent); sick, wounded or dead persons; burial or
cremation sites; medical facilities, equipment, supplies or
transportation; children's toys and other portable objects
specially connected to children such as objects for
feeding, health, hygiene, clothing or education; food or
drink; kitchen utensils and appliances (excluding those
in military installations); animals or animal carcasses;
and objects of religious, historical or cultural significance.
 Article 6 also provides that it is prohibited to use any
booby-trap designed to cause superfluous injury or
unnecessary suffering.
 The Protocol also bans the use of booby-traps, either
directly or indiscriminately, against civilians.
 The rules on booby-traps are considered customary
international law, in both international and non-
international armed conflicts.

(iii) Landmines
 Article 2 of Protocol II to the CCW defines mines as
any munition placed under, on or near the ground or
other surface area and designed to be detonated or
exploded by the presence, proximity or contact of a
person or vehicle, and “remotely delivered mine”
means any mine so defined delivered by artillery,
rocket, mortar or similar means or dropped from an
 Article 4 of the Protocol stated that:
It is prohibited to use weapons to which this Article
applies in any city, town, village or other area containing
a similar concentration of civilians in which combat
between ground forces is not taking place or does not
appear to be imminent, unless either:
(a) they are placed on or in the close vicinity of a military
objective belonging to or under the control of an adverse
party; or
(b) measures are taken to protect civilians from their
effects, for example, the posting of warning signs, the
posting of sentries, the issue of warnings or the
provision of fence.
 Article 5 stated that:
1. The use of remotely delivered mines is prohibited
unless such mines are only used within an area which is
itself a military objective or which contains military
(a) their location can be accurately recorded; or
(b) an effective neutralizing mechanism is used on each
such mine, that is to say, a self-actuating mechanism
which is designed to render a mine harmless or cause it
to destroy itself when it is anticipated that the mine will
no longer serve the military purpose for which it was
placed in position, or a remotely-controlled mechanism
which is designed to render harmless or destroy a mine
when the mine no longer serves the military purpose for
which it was placed in position.
2. Effective advance warning shall be given of any
delivery or dropping of remotely delivered mines which
may affect the civilian population, unless circumstances
do not permit.
 Amended Protocol II was adopted in 1996, which
extended the scope of Protocol II to include non-
international armed conflicts.
 The Amended Protocol prohibited the use of landmines
which “employ a mechanism or device specifically
designed to detonate the munition by the presence of
commonly available mine detectors as a result of their
magnetic or other non-contact influence during normal
use in detection operations”; which are “equipped with
an anti-handling device that is designed in such a
manner that the anti-handling device is capable of
functioning after the mine has ceased to be capable of
functioning”; which are indiscriminately used or
located; which cause unnecessary suffering or
superfluous injury; or which are otherwise
undetectable.
 The Amended Protocol obliges State parties to ensure
the recording of locations of minefields, and the clearing
 The Canadian government initiated a review process of
landmines in 1996, consulting with NGOs like the International
Campaign to Ban Landmines, the ICRC, and with numerous
States also keen to ban landmines outright. The result of this
process was the International Strategy Conference: Towards a
Global Ban on Anti-Personnel Mines (the Ottawa Conference),
which led to the negotiation and adoption, in 1997, of the
Convention on the Prohibition of the Use, Stockpiling,
Production and Transfer of Anti-Personnel Mines and on their
Destruction, also known as the Ottawa Convention.
 The Ottawa Convention prohibits outright the use, stockpiling,
production and transfer of anti-personnel mines, and obliges
States parties to the Convention to engage in measures to
destroy their own stockpiles. Anti-vehicle mines are not
prohibited under the Convention. The Ottawa Convention
applies in both international and non-international armed
conflicts, and the general provisions of the Convention relating
to placement, removal, and neutralization of landmines are
considered customary international law in both international
and non-international conflicts.
(iv) Incendiary weapons
 Protocol III to the CCW does not prohibit the use of
incendiary devices – such as flame-throwers or napalm
– outright, but rather prohibits their use against
civilians or civilian objects.
 Protocol III prohibits the use of air-delivered
incendiary weapons, and limits non air-delivered
incendiary attacks, against a military objective if such
objective is located within a concentration of civilians.
 The Protocol does not explicitly prohibit the use of
incendiary weapons against combatants.
 ICRC claimed that the anti-personnel use of
incendiaries is contrary to customary international law
in both international and non-international armed
conflict.
(v) Non-detectable fragments
 Protocol I to the CCW prohibits the use of weapons
that injure primarily through use of fragments that
cannot be detected through X-ray, such as plastic or
glass.
 The prohibition on such weapons is considered
customary international law in both international and
non-international armed conflicts.
 The prohibition on such weapons applies only to those
weapons whose primary method of injury is through
non-detectable fragments. It is not illegal to, for
example, use plastic casing on a grenade, as it is the
explosives within the grenade, and not the plastic used
to house the explosives, that is the primary method of
causing injury.
(vi) Blinding laser weapons
 Protocol IV prohibits any weapons that as their sole combat
function or as one of their combat functions … cause
permanent blindness to unenhanced vision, that is to the
naked eye or to the eye with corrective eyesight device.
 It is also prohibited to transfer such weapons to any other
State or non-State entity.
 The Protocol only prohibits the use of weapons with the sole
function of causing permanent blindness; weapons that
might incidentally blind (e.g., that are equipped with lasers
as a range finder or targeting device) are not prohibited.
 Weapons that cause temporary blindness – such as “flash-
bang” grenades – are permitted, as the weapon is not
designed to cause permanent blindness as its combat
function.
 The ICRC states that the prohibition on blinding laser
weapons is customary in both international and non-
international armed conflicts.
(vii) Explosive remnants of war (ERW)
 Protocol V obliges States parties to clear their territory of
explosive remnants of war, such as cluster munitions,
landmines and other unexploded ordnance.
 Under the Protocol, parties are obliged to take pre and post
conflict measures to secure and remove ERW from their
territory, as well as to assist other States in their own
clearance, removal and destruction activities.

(viii) Cluster munitions

 A canister-type device dispenser containing sub-munitions,
or bomblets, that disperse in the air after the dispenser
opens. The bomblets, in general, arm after dispersal and
detonate upon impact.
 Designed to spread their sub-munitions over a wide space,
and are effective for attacking large or dispersed targets.
 The 2008 Convention on Cluster Munitions bans the use,
development, stockpiling, production, retention or transfer to
a third party of cluster munitions.
 No State party to the Convention may assist,
encourage or induce any State to engage in the use of
cluster munitions.
 State parties are obliged to destroy any existing stocks
of the weapons, to assist other States in removing and
destroying stockpiles of cluster munitions and to
provide victim assistance for persons affected by the
weapons.
 The Convention defines cluster munitions as a
conventional munition that is designed to disperse or
release explosive submunitions each weighing less
than 20 kilograms, and includes those explosive
submunitions.
 Only those cluster munitions defined in the
Convention are covered by the ban.
(ix) Chemical weapons and poison
 1925 Protocol for the Prohibition of the Use in War of
Asphyxiating, Poisonous or Other Gases, and of
Bacteriological Methods of Warfare (Geneva Gas Protocol)
prohibited the use in war of asphyxiating, poisonous or
other gases, and of all analogous liquids materials or
devices and also prohibited the employment of
bacteriological methods of warfare.
 It was only in 1993 that an outright ban on chemical
weapons was adopted, in the form of the Convention on the
Prohibition of the Development, Production, Stockpiling
and Use of Chemical Weapons and on their Destruction
1993 (Chemical Weapons Convention or CWC)
 The use of chemical weapons is prohibited in both
international armed conflicts and non-international armed
conflicts and is considered customary international law.
 The use of chemical weapons is a war crime under the
Rome Statute.
(x) Biological and bacteriological weapons
 1972 Convention on the Prohibition of the Development,
Production and Stockpiling of Bacteriological (Biological)
and Toxin Weapons and on Their Destruction (Biological
Weapons Convention or BWC) bans the use of biological
weapons outright, and obliges parties to the treaty to
undertake never in any circumstances to develop, produce,
stockpile or otherwise acquire or retain any microbial or
other biological agents, or toxins whatever their origin or
method of production, of types and in quantities that have
no justification for prophylactic, protective or other
peaceful purposes as well as any weapons, equipment or
means of delivery designed to use such agents or toxins for
hostile purposes or in armed conflict.
 ICRC claims that the prohibition on the use, development,
stockpiling, production, retention or acquisition of
biological weapons is considered customary international
law.
 The use of bio-weapons is, however, not included in the
 Prohibited methods of warfare
 Article 57(2) of AP I states that those who plan or decide
upon an attack shall do everything feasible to verify that
the objectives to be attacked are neither civilians nor
civilian objects and are not subject to special protection
but are military objectives, take all feasible precautions
in the choice of means and methods of attack and refrain
from deciding to launch any attack which may be
expected to cause incidental loss of civilian life, injury to
civilians, damage to civilian objects, or a combination
thereof, which would be excessive in relation to the
concrete and direct military advantage anticipated.
An attack shall be cancelled or suspended if it
becomes apparent that the objective is not a military one or
is subject to special protection or that the attack may be
expected to cause incidental loss of civilian life and effective
advance warning shall be given of attacks which may affect
the civilian population, unless circumstances do not
permit.
(i) Orders of “no quarter”
 It is prohibited in all types of armed conflict to order or
threaten that “no quarter” will be given; i.e., that there
will be no survivors and that no prisoners will be taken.
 Article 23(d) of the Hague Regulations, Article 40 of AP I
and Article 4 of AP II.
 The prohibition on orders of no quarter is considered
customary international law in both international and
non-international armed conflicts, and declaring no
quarter is a war crime under the Rome Statute of the
ICC.

(ii) Perfidy
 Perfidy is an act that invites the confidence of an
adversary to lead him to believe that he is entitled to, or
is obliged to accord, protection under the rules of
international law applicable in armed conflict, with
intent to betray that confidence.
 Examples of acts that are prohibited as perfidious include
feigning an intent to negotiate under a flag of truce or
surrender; feigning an incapacitation by wounds or
sickness; feigning civilian, non-combatant status; and
feigning protected status by the use of signs, emblems or
uniforms of the United Nations or of neutral or other States
not parties to the conflict.
 Article 37(1) of AP I states that it is prohibited to kill, injure
or capture an adversary by resort to perfidy.
 The rules on perfidy are considered customary in both
international and non-international armed conflicts.
 Article 8(2)(b)(xi) of the Rome Statute of the ICC makes
perfidy a war crime.

(iii) Siege warfare and starvation of civilians

 Siege warfare is the practice of encircling an enemy military
concentration, a strategic fortress or any other location
defended by the enemy, cutting it off from channels of
support and supply. Siege warfare is not prohibited
 Article 17 of GC IV states that the Parties to the conflict shall
endeavour to conclude local agreements for the removal from
besieged or encircled areas, of wounded, sick, infirm, and aged
persons, children and maternity cases, and for the passage of
ministers of all religions, medical personnel and medical
equipment on their way to such areas.
 Article 54 of AP I further provides that starvation of civilians as
a method of warfare is prohibited. It is prohibited to attack,
destroy, remove or render useless objects indispensable to the
survival of the civilian population, such as foodstuffs,
agricultural areas for the production of foodstuffs, crops,
livestock, drinking water installations and supplies and
irrigation works, for the specific purpose of denying them for
their sustenance value to the civilian population or to the
adverse Party, whatever the motive, whether in order to starve
out civilians, to cause them to move away, or for any other
motive.
 Absolute siege of a military installation is permissible. However,
where civilians are affected (i.e., if the locality under siege has
both civilian and military populations), then some of the key
elements of siege warfare –cutting off supplies, destroying
 Article 8(2)(b)(xxv) of the Rome Statute criminalises the
starvation of civilians as a method of warfare.
 ICRC CIHL Study also considers the prohibition on the
starvation of civilians as customary international law in
both international and non-international armed
conflicts.
(iv) Pillage
 The prohibition on pillage is long-established in IHL but
none of the IHL treaties defines pillage, and it is often
equated with plunder or looting.
 It is a war crime in both international and non-
international armed conflict under the Rome Statute,
and the ICC's Elements of Crime emphasize the
requirement that the taking be for personal or private
use or gain – in contrast to a lawful military requisition.
 The prohibition on pillage is considered customary
international law in both international and non-
international armed conflicts.
 Other rules relating to methods of warfare
(i) Belligerent reprisals
 Belligerent reprisals are actions which would normally be
contrary to the laws of war but which are justified because
they are taken by one party to an armed conflict against
another party, in response to the latter's violation of the law
of armed conflict.
 The purpose of a reprisal is to sanction the enemy for its
violations and compel the enemy to comply with the LOAC
in the future.
 But there are certain persons and objects against which
belligerent reprisals may never be launched – including the
wounded, sick and shipwrecked, POWs, civilians and the
civilian population, certain civilian objects, cultural
property, the natural environment, works and installations
containing dangerous forces and objects indispensable to
the survival of the civilian population.
 ICTY acknowledged the legality of reprisals in the 2007 case
of Martić, stating that reprisals may be permitted provided
they meet the strict conditions established under customary
 (ii) Mercenaries
 Mercenaries are determined as unlawful combatants, with no
rights to combatant or prisoner of war status.
 The denial of combatant and POW status to mercenaries under
Article 47 of Protocol I is considered to be customary
international law.
 Article 47, defines a mercenary as any person who:
(a) is specially recruited locally or abroad in order to fight in an
armed conflict;
(b) does, in fact, take a direct part in the hostilities;
(c) is motivated to take part in the hostilities essentially by the
desire for private gain and, in fact, is promised, by or on behalf of
a Party to the conflict, material compensation substantially in
excess of that promised or paid to combatants of similar ranks and
functions in the armed forces of that Party;
(d) is neither a national of a Party to the conflict nor a resident of
territory controlled by a Party to the conflict;
(e) is not a member of the armed forces of a Party to the conflict;
and
(f) has not been sent by a State which is not a Party to the conflict
(iii) Parachutists in distress
 Article 42(1) of AP I states that no person parachuting
from an aircraft in distress shall be made the object of
attack during his descent.
 Article 42(2) states that upon reaching the ground in
territory controlled by an adverse Party, a person who
has parachuted from an aircraft in distress shall be
given an opportunity to surrender before being made
the object of attack, unless it is apparent that he is
engaging in a hostile act.
 Article 42(3) states that Airborne troops are not
protected by this Article.
 The rule in Article 42 is considered customary
international law, in both international and non-
international armed conflicts.
(iv) Espionage
 Espionage is defined in Art. 46(3) of AP I as the act of
gathering or attempting to gather information of military
value within enemy territory through an act of false
pretences or deliberately in a clandestine manner.
 Soldiers not wearing a disguise who have penetrated into
the zone of operations of the hostile army, for the purpose
of obtaining information, are not considered spies.
 Espionage is a lawful method of warfare; however, persons
who are caught while engaging in espionage are not
entitled to combatant or POW status and will be liable for
domestic prosecution on capture.
 A soldier engaged in espionage while in uniform is not a
spy and has POW status if and whenever captured.
 A person captured while engaging in espionage, and not in
uniform, is a spy and does not have POW status, and
 A person who has engaged in espionage while not in
uniform but manages to return to his own forces before
capture does have POW status.