The international law of armed conflict also known as international humanitarian law or the law of

war governs the conduct of warfare, addressing the use of weapons and the protection of those
affected by both international and non-international armed conflicts. Although its roots lie in ancient
customary practices, it has evolved into one of the most extensively codified branches of
international law, particularly since the late 19th century. At its heart are the 1949 Geneva
Conventions, universally ratified by all states. However, ensuring adherence to and enforcement of
these laws remains a significant challenge, even more so than in other areas of public international
law.

This difficulty has fostered a close relationship between humanitarian law and international criminal
law. The establishment of international criminal tribunals in the 1990s to address atrocities in the
former Yugoslavia and Rwanda reignited global interest in the principles of humanitarian law,
prompting their reaffirmation and further development.

This area of law encompasses several key aspects: the scope of its application, classifications of
individuals (such as combatants and civilians), rules governing the conduct of hostilities (including
weapons use and targeting), protections for vulnerable groups (such as the sick, wounded,
shipwrecked, prisoners of war, and civilians), and mechanisms for ensuring compliance and
enforcement.

Armed conflict—organized force between or within states—has always been a part of human history.
Today, there are around 50 situations worldwide involving either active conflicts or heightened
tensions with a real risk of violence. This reality, coupled with increased humanitarian activism, the
impact of constant media coverage from conflict zones (the “CNN effect”), and mechanisms holding
states and individuals accountable under international law, has brought international humanitarian
law (IHL) to the forefront of public international law in recent decades.

While once described as being at the "vanishing point" of international law, the relevance of IHL has
grown significantly. The First Gulf War (1991) was a turning point, showcasing how legal
considerations influenced decision-making at every level. Yet, the roots of the law of armed conflict
trace back centuries. In medieval Europe, war was seen as a "game" for nobles, with rules to regulate
conduct, such as the 1139 ban on crossbows, not for humanitarian reasons but for preserving
chivalry.

Initially, these rules rarely applied to ordinary soldiers or wars against "uncivilized" enemies. By the
17th and 18th centuries, with standing armies fighting on behalf of states, concepts like reciprocity
emerged—treating captured soldiers humanely to ensure similar treatment for one’s own. The law
remained largely customary until the mid-19th century, when wars like the Crimean War (1853–
1855) and the American Civil War (1861–1865) exposed the horrific human toll of modern warfare.
Advances in weaponry, inadequate medical care, and increasing battlefield reporting spurred a
humanitarian push, leading to multilateral treaties that codified and expanded the rules of war.
International humanitarian law (IHL) is now extensively codified in about 58 multilateral treaties,
yet customary law remains highly significant. This is partly due to the recognition, dating back to
1899, that treaties cannot foresee every scenario in armed conflict. The International Committee of
the Red Cross (ICRC) underscored this with a comprehensive study identifying 161 rules of
customary IHL, supported by evidence of state practice and legal opinions (Henckaerts and
Doswald-Beck, 2005). Moreover, the 1949 Geneva Conventions, with 196 state parties by 2014
(including Palestine), are widely regarded as customary international law. This allowed their
application during arbitration over the 1998–2000 Ethiopia-Eritrea conflict, despite Eritrea not
having ratified the Conventions at the time.

While IHL and international human rights law (IHRL) share some linguistic and conceptual
similarities, they are distinct. IHL, as the lex specialis, applies specifically to armed conflicts,
focusing on the treatment of combatants, civilians, and neutral parties. In contrast, IHRL is the lex
generalis, applicable in both peace and war, primarily regulating how states treat their own citizens.
IHL is typically more detailed in conflict scenarios, although overlaps have emerged. For example,
the European Court of Human Rights (ECtHR) addressed such issues in the Banković case regarding
NATO’s 1999 bombing of Serbia. The court ruled that the European Convention on Human Rights
(ECHR) did not apply, as the NATO forces lacked "effective control" over the territory they bombed.
However, in other contexts, such as military occupations, human rights obligations have been upheld
when forces exercise effective territorial or personal control, as seen in cases involving Turkey’s
actions in Northern Cyprus and the UK’s operations in Iraq.

Despite these overlaps, human rights law does not typically govern battlefield conduct. For instance,
while the right to life is fundamental, it can lawfully be curtailed in armed conflict under IHL's
precise and technical regulations. Thus, IHL remains the primary framework for regulating behavior
during warfare.

Scope of Application of Humanitarian Law

International humanitarian law (IHL) applies in all armed conflicts, regardless of their classification
or the legality of the use of force (jus ad bellum). It applies equally to all parties in a conflict and is
independent of the legality of initiating hostilities. While jus ad bellum governs the right to resort to
force, jus in bello regulates conduct during conflict. These two bodies of law are distinct, though
recent practices, such as justifying drone strikes under self-defense provisions in Article 51 of the
UN Charter, have increasingly blurred the lines between them.

For instance, an airstrike conducted during an illegal operation under jus ad bellum is not
automatically illegal under jus in bello. Similarly, the victim of aggression cannot lawfully target the
civilian population of the aggressor. Despite these clear distinctions, determining when and how IHL
applies is not always straightforward due to ambiguities in defining armed conflict and the
recognition of various types of conflicts.
Historically, the application of the law of war was linked to a declaration of war, which suspended
most peacetime legal relations between states. While hostilities often began before a formal
declaration, the declaration served as conclusive evidence of a state of war, which persisted until a
peace treaty restored peacetime relations. However, since the adoption of the UN Charter in 1945,
with its prohibition on the threat or use of force, declarations of war have become obsolete. The last
formal declaration occurred in 1945 when the Soviet Union declared war on Japan.

Modern terminology has shifted to "armed conflict," a factual description that avoids the normative
implications of "war." States often prefer this term to maintain diplomatic flexibility, particularly in
low-intensity conflicts. For example, during the 1956 Suez Crisis, the UK refrained from declaring
war on Egypt, describing the situation as an "armed conflict." Similarly, during Indonesia’s
Konfrontasi with Malaysia (1962–1966), British troops engaged in active hostilities with Indonesian
forces, yet diplomatic and commercial relations between the UK and Indonesia continued,
illustrating the mixed status of war and peace. This approach allows states to manage conflicts
diplomatically and politically without escalating to full-scale war.

The application of International Humanitarian Law (IHL) does not depend on the legality of the use
of force or formal recognition of a conflict. The Geneva Conventions apply to "declared war or any
other armed conflict," as seen during the Falklands War (1982), when the UK denied being at war
with Argentina but adhered to IHL.

The definition of "armed conflict" in IHL is unclear. The ICRC suggested that any military
engagement between states qualifies, but this view is not widely supported in practice, as minor
skirmishes are typically excluded. In 1995, the ICTY clarified that an armed conflict involves
substantial, protracted, and large-scale violence between states or organized groups, applying IHL
from the start of hostilities until peace is achieved. Examples like the Entebbe Raid (1976) or cross-
border incidents in Syria demonstrate situations where conflicts were not formally recognized as
armed conflicts despite hostilities.

IHL applies beyond active combat, ensuring protection for prisoners of war until repatriation and
civilians during occupation. Although the Geneva Conventions do not explicitly define the end of
armed conflict, terms like "the general close of military operations" guide its application, especially
with the decline in peace treaties.

Initially, IHL governed only inter-state conflicts due to sovereignty concerns. However, Common
Article 3 of the Geneva Conventions (1949) and Additional Protocol II (1977) extended basic
protections to non-international conflicts. A trend toward harmonizing rules for all conflict types is
evident, particularly in weapon regulations, but distinctions between international and non-
international conflicts remain crucial for provisions like grave breaches and combatant or POW
status.
Armed conflicts today are classified as either international or non-international. Non-international
conflicts may occur entirely within a state's borders or have cross-border effects, sometimes
becoming "internationalized" if foreign forces intervene, particularly when assisting insurgents or
exercising control over them. For instance, the UK considered its operations in Afghanistan post-
2001 a non-international conflict, a position based on Coalition States' practice rather than strong
doctrinal support. Intervention dynamics, such as unilateral actions (e.g., France in Mali), mandates
by international organizations (e.g., the African Union in Somalia), or ad hoc coalitions (e.g., Saudi-
led forces in Yemen), highlight the complexity of modern conflicts. Some conflicts, like the Syrian
Civil War, involve parallel international and non-international armed conflicts governed by different
legal frameworks.

Under the Geneva Conventions, international armed conflicts include declared wars, any armed
conflict between High Contracting Parties, or situations of occupation, regardless of resistance.
Examples include the Israeli occupation of Palestinian territories since 1967 and Russia's occupation
of Crimea since 2014. Non-international armed conflicts occur within the territory of one High
Contracting Party. Historically, formalistic requirements for state participation in treaties caused
abuse, such as Germany’s refusal to apply the 1929 Geneva Convention during World War II. Today,
IHL applies universally wherever armed conflicts exist, as both the Geneva Conventions and Hague
Regulations are considered customary international law.

The 1977 Additional Protocols expanded the scope of IHL by addressing conflicts involving
struggles against colonial domination, alien occupation, or racist regimes, tied to self-determination
rights. Article 96(3) allows a people’s authority in such conflicts to commit unilaterally to applying
the Geneva Conventions and the Protocol through a declaration. Some states have resisted ratifying
the Protocols due to these broadened definitions.

The 1977 Additional Protocols significantly broadened the scope of international regulation by
classifying previously internal armed struggles as matters of international concern. Acts of violence
by non-State actors could now be seen as legitimate acts of war if the perpetrators claimed to be
fighting for national liberation or self-determination. This expansion, however, was met with
resistance from states engaged in conflicts with groups they deemed "criminals" or "terrorists." As a
result, some military powers either did not ratify the Protocol or did so with reservations that
undermined its extended application.

For instance, during "The Troubles" in Northern Ireland, the Irish Republican Army (IRA) sought to
frame its actions as part of a struggle for Irish self-determination, demanding prisoner of war (POW)
status for its members. The UK, however, denied that there was an armed conflict in Northern
Ireland, viewing IRA members as criminals, not combatants. This disagreement contributed to the
UK's delayed ratification of the Protocol until 1998. Upon ratification, the UK made clear that it
would not consider itself bound by declarations under Article 96(3) unless the declaring body was a
legitimate authority representing a people in an international armed conflict.
There has been no successful attempt to invoke the expanded definition of international armed
conflict in practice, despite the Palestine Liberation Organization (PLO) attempting to adhere to the
Protocols in 1989. The Swiss Government rejected this due to the uncertain status of the State of
Palestine.

The definition of non-international armed conflicts, as established by the Tadić case and other
international courts, requires a certain level of intensity in fighting and sufficient organization of the
parties involved. However, this standard has proven difficult to apply consistently.

Article 1 of Protocol II defines non-international armed conflicts as those taking place within a
state’s territory between its armed forces and dissident armed groups or other organized forces. For
the Protocol to apply, these groups must have responsible command and control over part of the
state's territory, enabling them to carry out sustained and coordinated military operations. However,
the Protocol explicitly excludes internal disturbances, such as riots or isolated acts of violence, from
its scope.

The main challenge with applying this definition in practice is the requirement that the dissident
group controls territory and conducts significant military operations. This high threshold has made it
difficult to classify many insurgencies under Protocol II, especially when rebel groups lack the power
or will to apply international humanitarian law. For example, during the Sri Lankan Civil War, the
LTTE controlled significant territory but Sri Lanka did not ratify Protocol II, and neither side
effectively applied international humanitarian law.

Additionally, the complex definitions of international and non-international conflicts can create
confusion, especially when it comes to classifying irregular opponents and determining the rights of
combatants. This confusion has led to governments making key determinations on how conflicts
should be classified, which can influence the application of international law. For instance, the U.S.
government in the aftermath of the 9/11 attacks classified the "War on Terror" as an international
armed conflict, but detainees captured in the conflict were not granted prisoner of war status under
the Geneva Conventions.

The U.S. Supreme Court's decision regarding the status and treatment of detainees captured in the
"War on Terror" was rooted in the classification of the conflict as a non-international armed conflict
(NIAC), largely because it did not involve High Contracting Parties to the Geneva Conventions nor
take place on their territories. This position, especially regarding detainees held at Guantánamo Bay,
was controversial internationally, as most states disagreed with the U.S. interpretation. The Obama
administration later distanced itself from this view, which emphasized the legal complexity of
classifying conflicts involving non-state actors.

Israel's stance, on the other hand, viewed such conflicts as international armed conflicts, given their
transnational nature and the capabilities of groups like Al-Qaeda, advocating for the application of
the full scope of International Humanitarian Law (IHL). The UK adopted a more flexible approach,
treating various military engagements against groups like Al-Qaeda as separate conflicts rather than
as part of a single overarching war, applying IHL based on the situation in each operational theater.

The post-2003 Iraq conflict demonstrated the challenges of applying IHL in modern, multi-phased
conflicts. Initially, Iraq's invasion and the subsequent occupation were considered an international
armed conflict, but the legal situation grew more ambiguous after the occupation ended. This
complexity required a mix of IHL, human rights law, and UN Security Council resolutions to address
the evolving nature of the conflict, especially as Coalition forces conducted extraterritorial
operations against non-state actors.

In the face of evolving warfare, the scope of IHL has expanded to address new domains like outer
space and cyberspace. While traditional warfare laws—such as those codified in the San Remo
Manual for maritime conflict and the Harvard Manual for air and missile warfare—still apply, the
application of IHL to cyberspace remains uncertain. Efforts like the Tallinn Manual on Cyber
Warfare reflect attempts to address the legal challenges posed by cyberattacks, though international
consensus remains elusive. This was evident in the collapse of the UN Group of Governmental
Experts in 2017, which failed to agree on applying IHL to cyberspace, largely due to resistance from
certain states such as China, Cuba, and Russia.

The concept of combatants and civilians lies at the heart of International Humanitarian Law (IHL),
particularly in international armed conflicts. Combatants are those who are lawful participants in
military operations and may be targeted in combat, while civilians are generally protected from
direct attack. The distinction between these two groups has become increasingly difficult in modern
warfare, especially due to the prevalence of irregular forces and the urban environment where
civilians remain present during conflicts.

Historically, the laws of war did not define combatants explicitly, as soldiers were easily
distinguishable from civilians. The distinction was clear when battles were fought by organized
armies in rural areas. However, during the Franco-Prussian War of 1870–71, two new categories of
persons emerged: francs-tireurs (irregular fighters) and levée en masse (mass levy). The former
referred to civilians who took up arms independently of any formal military control, while the latter
referred to civilians mobilized under duress without time for military organization. Although levée
en masse members were granted combatant status, francs-tireurs were often treated as non-
combatants and subjected to harsh reprisals, particularly during World War I and II.

The legal framework for determining combatant status evolved with the 1907 Hague Regulations,
which formalized criteria for militia and volunteer corps to be recognized as lawful combatants.
These criteria include being commanded by a person responsible for subordinates, having a
distinctive emblem, carrying arms openly, and adhering to the laws and customs of war. Under this
framework, combatants are entitled to prisoner of war (POW) status if captured.
In 1949, the Geneva Conventions further clarified combatant status by granting POW status to
members of regular armed forces, militias, volunteer corps, and authorized persons accompanying
the armed forces. It also extended this protection to participants in a levée en masse. However,
military medical and religious personnel are considered non-combatants and are not granted POW
status.

The 1977 Additional Protocol I further expanded the definition of combatants, particularly in relation
to non-state actors. Article 43 of the Protocol defined armed forces as any organized armed group
under a command responsible for the conduct of its subordinates, even if the group is not recognized
by the opposing party. This shift allowed non-state actors in national liberation movements to be
recognized as lawful combatants, which caused controversy among states that objected to the
inclusion of groups not recognized by international law. This shift in the definition of combatants has
been especially beneficial to insurgent and liberation movements in conflicts against established
states.

Thus, while the classification of combatants has evolved to include irregular and non-state groups, it
remains contentious, particularly for states engaged in conflicts with such groups. This distinction
continues to be a central challenge in applying IHL to modern conflicts.

The status of lawful combatants is a fundamental concept in International Humanitarian Law (IHL).
Article 43 of Additional Protocol I defines lawful combatants as members of organized armed forces,
groups, and units under a responsible command. These individuals are entitled to prisoner of war
(POW) status if captured. To maintain the protection of civilians during hostilities, combatants are
required to distinguish themselves from the civilian population while engaging in military
operations, particularly during attacks or when preparing for an attack.

The Protocol takes into account situations where combatants may not be able to distinguish
themselves due to the nature of the conflict, such as in urban warfare or guerrilla operations. While
this provision relaxes the traditional requirements set out by The Hague Regulations (which required
combatants to carry a distinctive emblem), it allows for the possibility that combatants may not be
distinguishable in certain circumstances, provided that they carry arms openly during engagements
or when visible to the enemy during military deployment. This has been a point of controversy, as
some states argue that the interpretation of when combatants must distinguish themselves is too
lenient and could allow irregular fighters to evade the stricter standards for lawful combatancy.

The United States' legal stance on the status of detainees captured in conflicts like Afghanistan
further demonstrates the legal tensions. After 2001, the U.S. government labeled Taliban and Al-
Qaeda fighters as "unlawful combatants," denying them POW status and subjecting them to
indefinite detention. This legal interpretation was highly controversial and faced criticism for not
providing detainees with the protections of IHL. The detention facility at Guantánamo Bay has
become a symbol of these legal challenges, with many detainees remaining in legal limbo.
Under the Protocol, anyone who takes part in hostilities without being a lawful combatant is
presumed to be a POW upon capture, unless a competent tribunal decides otherwise. This
presumption, more expansive than that found in Geneva Convention III, shifts the burden of proof in
favor of individuals captured in conflict, ensuring they are treated as POWs unless proven to be
unlawful combatants. It reflects a significant shift toward protecting individuals who may not meet
traditional combatant criteria but are involved in hostilities.

The issue of mercenaries is also addressed in IHL. Traditionally, mercenaries—soldiers who fight
for financial gain rather than national allegiance—were regarded as lawful combatants. However, the
post-World War II period, particularly after decolonization, saw a shift in international attitudes
toward mercenaries. Additional Protocol I (Article 47) and the UN's International Convention against
Mercenaries explicitly exclude mercenaries from lawful combatant status, denying them POW
protection. A mercenary is defined as someone motivated by private gain and who is not a national or
resident of a party to the conflict, nor a member of its armed forces. The definition was expanded to
include individuals involved in violent actions aimed at overthrowing governments or undermining
the territorial integrity of a state, even if they do not directly participate in hostilities. This change in
legal status reflects growing international condemnation of mercenarism, particularly in conflicts
where mercenaries were seen as destabilizing forces, such as in Africa during the decolonization
period.

In conclusion, while the distinction between lawful combatants and civilians is crucial in IHL, the
evolving nature of modern warfare, the participation of non-state actors, and the use of mercenaries
complicate the application of these principles. These challenges continue to shape the development
of IHL, as states and legal experts work to adapt the law to contemporary conflicts.

The continued use of mercenaries in modern conflicts, despite legal frameworks aimed at their
regulation, highlights the challenges of contemporary warfare. Since the 1990s, mercenaries have
played significant roles in various conflicts, such as those in the former Yugoslavia and Sierra Leone.
The rise of private military and security companies (PMSCs), particularly since the Iraq War
(2003-2004), has further complicated the issue. These companies, often composed of former military
personnel, are contracted to provide various services, including military operations, training, and
security tasks. In some cases, their actions, like being overly aggressive or "trigger-happy," have
drawn significant criticism.

The legal status of PMSCs under International Humanitarian Law (IHL) is ambiguous. While some
argue they could be treated similarly to supply contractors—who benefit from certain protections
under IHL—others point out that PMSCs operate outside the traditional framework of armed forces,
making them more akin to civilians under the law. Despite their contractual right to self-defense, the
key legal question revolves around whether their activities constitute direct participation in
hostilities, a role that would affect their rights under the law of armed conflict.
Another deeply concerning issue in modern warfare, especially in parts of Africa, is the use of child
soldiers. Armed groups, such as the Lord’s Resistance Army in Uganda and the Revolutionary
United Front in Sierra Leone, have notoriously recruited children into their ranks. This practice
contravenes the 1989 UN Convention on the Rights of the Child and its 2000 Optional Protocol,
which prohibit the use of children under 18 in armed conflict. Article 77 of Additional Protocol I
also mandates that states take measures to prevent children under 15 from engaging in hostilities,
emphasizing the need for states to protect children from such exploitation.

The conduct of hostilities, particularly with respect to targeting operations, is governed by

principles that aim to balance military necessity with humanitarian concerns. The modern law of
armed conflict emphasizes two primary principles:

1. Distinction: Belligerents must distinguish between combatants and civilians, and attacks
should be directed only at military objectives.

2. Proportionality: Civilian casualties and damage to civilian objects are permissible only if
they are not disproportionate to the anticipated military advantage.

In practice, the principle of distinction is central to targeting operations. Article 48 of Additional

Protocol I codifies this principle, requiring belligerents to always distinguish between military and
civilian targets. Article 52(2) defines military objectives as those which make an effective
contribution to military action. The key here is that, while inherently military objects (e.g., military
bases) are clear targets, objects like bridges, roads, or apartment buildings can only be targeted if
they are being used for military purposes. If there is any doubt about whether an object is a military
target, the presumption is that it is civilian, and it should not be attacked unless there is clear military
necessity.

Moreover, commanders must take all feasible precautions to minimize civilian harm. This includes
warnings to civilians, cancellation of attacks if civilian damage becomes disproportionate, and
ensuring that military objectives are not in civilian areas unless absolutely necessary. The concept of
dual-use objects further complicates targeting, as some civilian infrastructure may also serve
military purposes. For such targets, the military advantage must outweigh the potential harm to
civilians, and the timing of the attack must be considered in terms of its long-term effects.

Ultimately, these legal provisions reflect the desire to mitigate the human cost of warfare, especially
concerning the protection of civilians. However, they rely heavily on the judgment of military
commanders in the field, who must balance military objectives with the imperative to safeguard
civilian lives and property. Despite these protections, violations of IHL—such as targeting civilians,
using child soldiers, or employing mercenaries—continue to pose significant challenges in modern
warfare, underscoring the gap between legal norms and the realities of armed conflict.

The issue of dual-use objects (those with both civilian and military functions) under international
law remains complex and often lacks clear-cut definitions. However, the principles for determining
the legality of attacks on such targets are consistent with general laws of armed conflict. The primary
test is whether the anticipated collateral damage would be proportionate to the military advantage
gained by the attack.

One example of this was NATO's decision to target the Serbian Radio and Television building in
Belgrade during the 1999 Kosovo conflict. The building served as both a civilian entertainment and
information center, and, crucially, as a backup communications hub for the Serbian military. While it
was located in a civilian area, the building’s military function made it a legitimate target under
international law. NATO assessed the collateral damage carefully, choosing to attack it at night when
civilian casualties would likely be minimized. Despite the loss of 16 civilian lives, the military
advantage gained was considered to outweigh the harm caused, and NATO’s actions were found to
comply with the laws of armed conflict (LOAC).

However, the assessment of proportionality is not formulaic and depends on the specific context of
the operation, including available intelligence and the operational objectives at the time. Civilian
deaths resulting from honest mistakes, such as those arising from faulty intelligence, are generally
not classified as violations of LOAC, as long as the military took the required precautions.

The choice of weapons in warfare is also strictly regulated under international law, with specific
prohibitions and limitations designed to protect civilians and prevent unnecessary suffering.

1. Prohibition of superfluous injury or unnecessary suffering: According to Article 22 of

The Hague Regulations, belligerents are not free to use any weapons or methods that might
cause excessive injury. This rule has led to the development of treaties that ban certain types
of weapons, including explosive projectiles and poison gas. The prohibition is not based
solely on the weapon's intended use but also on its inherent nature to cause harm. For
instance, while white phosphorus is not entirely banned under LOAC, its use against
personnel, like during the 2004 Battle of Fallujah, could violate the prohibition if its effects
result in excessive suffering.

2. Indiscriminate weapons: The use of weapons that cannot be directed at a specific military
target is also prohibited. This rule is a safeguard for civilian protection and forbids tactics like
area bombardment, which involves targeting broad areas without distinguishing between
civilian and military objectives. The use of such indiscriminate weapons has been condemned
in various conflicts, including Iraq's use of Scud missiles and the V1 and V2 rocket attacks
by Germany during World War II.

Beyond these general principles, various specific weapons are banned or restricted under
international treaties, including:

 Explosive bullets and dum-dum bullets that cause excessive or inhumane wounds.

 Chemical and biological weapons, including poison gases.

  Anti-personnel landmines, which continue to pose risks to civilians long after conflicts end.

 Incendiary weapons and blinding laser weapons, which can cause long-term injury to
civilians.

 Cluster munitions, which often fail to explode on impact, leaving unexploded ordnance that
poses significant risks to civilians.

These legal provisions are part of a broader framework of International Humanitarian Law (IHL)
designed to minimize the humanitarian impact of war. However, the application of these rules in
practice remains challenging, particularly in the context of modern warfare where technology,
intelligence, and military tactics evolve rapidly. The ultimate responsibility for ensuring compliance
with IHL rests with military commanders, who must carefully balance military objectives with the
need to protect civilians.

The Environmental Modification Treaty (1977) is significant in prohibiting the deliberate

manipulation of the environment for warfare purposes. This includes altering weather conditions or
geological structures to create a military advantage. Although the use of banned weapons like
chemical agents is rare in modern warfare, the Syrian Civil War has seen repeated use of chemical
weapons, including nerve agents like sarin and chlorine gas. Notably, in 2017, a sarin gas attack on
Khan Shaykhun prompted a U.S. missile strike on a Syrian airbase in response, though the legal
basis for the U.S. action remains debated.

One notable issue in international humanitarian law (IHL) is the use of nuclear weapons, which
lacks specific regulations in LOAC. Despite several UN General Assembly resolutions condemning
nuclear weapons, they are not explicitly prohibited under IHL, and the International Court of
Justice (ICJ) in its advisory opinion on nuclear weapons found that their use must comply with the
principles of IHL, especially regarding unnecessary suffering. However, the court's opinion was
widely criticized for its ambiguity, as it did not decisively rule in favor or against nuclear weapons'
legality. The UK, for instance, maintains that the rules in Additional Protocol I do not regulate or
prohibit the use of nuclear weapons.

Efforts to regulate nuclear weapons include the Treaty on the Prohibition of Nuclear Weapons,
adopted by 122 votes in the UN General Assembly. Although the treaty has achieved some support,
it faces significant opposition, particularly from nuclear weapon states. While the treaty may not
result in immediate legal change, it carries strong moral and diplomatic weight.

The legal and ethical questions surrounding nuclear weapons remain deeply contentious. Although
nuclear weapons could potentially be used in a tactical military context—for example, targeting a
purely military objective like a naval fleet—they would generally be unlawful if used
indiscriminately or against civilian populations, violating the fundamental rules of IHL.
The rise of unmanned aerial vehicles (UAVs or drones) has become a significant feature of modern
warfare, especially in asymmetric conflicts. The U.S., in particular, has used drones for targeted
killings of individuals identified as terrorists in countries like Yemen, Syria, and Afghanistan.
While drones themselves are not inherently unlawful under IHL, they raise serious concerns
regarding compliance, particularly in relation to collateral damage and whether the targeted
individuals are legitimate military targets. Furthermore, the legal questions are complicated by the
extrajudicial execution concerns and potential abuses of power.

The prospect of fully autonomous weapons systems (that is machines making decisions to use
lethal force without human oversight) also poses significant legal and ethical challenges. If such
systems are introduced, they will have to comply with the same IHL principles as current weapons,
but their potential to operate outside of human control could raise new moral and legal dilemmas.

In conclusion, while many weapons and methods of warfare are prohibited or regulated by
international treaties and customary law, emerging technologies and weapons such as nuclear
weapons, drones, and autonomous systems present complex challenges for compliance with
international humanitarian law. These issues reflect the evolving nature of warfare and the
ongoing struggle to reconcile technological advancement with the protection of civilian lives and the
minimization of suffering during conflicts.

PROTECTION OF VICTIMS
For the purposes of legal protection, IHL defines three categories of person as ‘victims’ of armed

conflicts, in the sense that they have specific rights as a consequence of their status. These categories

are: the wounded and sick (including persons shipwrecked at sea), prisoners of war and civilians.

Each is subject to a detailed separate regime of legal protection; in the case of the wounded and sick

on land, the treaty in question is the oldest in the canon of contemporary humanitarian law.

THE WOUNDED AND SICK

The protection of the wounded and sick in armed conflicts is a central aspect of international

humanitarian law (IHL), especially under the Geneva Conventions. This protection has its roots

in the 1864 Geneva Convention for the amelioration of the condition of the wounded in armies in

the field, which was inspired by Henri Dunant’s observations of the suffering of soldiers after the

Battle of Solferino. The Geneva Conventions have since expanded and refined these protections.

The core principles for the protection of the wounded and sick, as set out in the 1864 Convention

and the subsequent Geneva Conventions, are as follows:

 1. Relief must be provided without distinction: This means that wounded and sick soldiers

must receive care regardless of their allegiance, nationality, or status in the conflict. Both

enemy and friendly combatants are entitled to the same medical treatment.

2. Inviolability of medical personnel, establishments, and units: Medical personnel and

facilities are to be protected from attack. Medical personnel have the right to assist the

wounded without being considered a combatant, and medical facilities must remain neutral

in conflict.

3. Recognition and respect for distinctive protective signs: The Red Cross (or Red Crescent

in some countries) and other recognized emblems must be respected as symbols of protection

for medical services and personnel. These signs must not be misused, as their misuse could

be deemed a war crime of perfidy.

Protection of Medical Units and Personnel

Under the Geneva Conventions, enemy wounded may not be attacked. They must be treated

humanely and given access to medical care just as the attacking force would treat its own soldiers.

This protection extends to medical units, transport, and hospitals, which cannot be attacked unless

they are being used for hostile activities. If these medical units are used in combat, they must first be

warned before any attack is launched.

Historically, the protection of medical units has faced challenges in practice. For instance, during the

Italo-Turkish War (1911-1912), the Ottoman Red Crescent's hospitals were bombed by Italian

aircraft. In more recent times, the protection of medical facilities has been tested in modern

conflicts. One example is the 2015 airstrike in Afghanistan on a Médecins Sans Frontières

(MSF) hospital in Kunduz, which resulted in over 250 casualties. The U.S. airstrike targeted what

was believed to be a Taliban compound, though the hospital was on a no-strike list. The

investigation into the incident found it to be a tragic error involving human mistakes and equipment

failures, but did not classify it as a war crime.

Defense of Medical Personnel

While medical personnel are protected under IHL, they can carry weapons for self-defense and to

protect the wounded under their care. However, they must not be the object of reprisals, which are

actions intended to punish or retaliate against personnel for acts related to their duties. The Red

Cross and similar emblems (like the Red Crescent) can only be used by recognized medical entities,

such as the ICRC, national Red Cross societies, and military medical services. Misuse of these

emblems can lead to criminal charges and may constitute perfidy, which is a deceitful act in

warfare.

Conclusion

The Geneva Conventions’ provisions on the protection of the wounded, sick, and medical personnel

aim to minimize human suffering in armed conflict. They emphasize the principles of neutrality,

non-discrimination, and proportionality when it comes to medical care in wartime. Despite these

laws, the application of IHL can be complicated by the chaos of war, and violations of medical

neutrality remain an ongoing concern, as seen in incidents like the bombing of the Kunduz hospital.

PRISONERS OF WAR

The protection of prisoners of war (POWs) has long been a core component of international

humanitarian law (IHL). This protection emerged with the development of the nation-state and

the advent of regularly conscripted citizen armies in the late seventeenth century. It was accepted

that soldiers who surrendered to the enemy should be protected by the capturing state and not at the

mercy of individual enemy commanders. Initially, the main reason for capturing soldiers was to

prevent them from returning to the battlefield, thereby maintaining the military advantage. In earlier

times, prisoners were often released on the condition that they would not re-enlist and fight again, a

practice known as being "paroled."

The Geneva Conventions have significantly advanced the protection of POWs, particularly Geneva

Conventions II (1929) and Geneva Conventions III (1949), which have established highly

regulated provisions for the treatment of captured soldiers.

Duty of the Detaining Power: The Detaining Power (the State that captures a soldier) is legally

responsible for ensuring that POWs are treated humanely. This duty extends to ensuring that POWs
are not murdered, tortured, or subjected to any form of abuse, including exposure to public

curiosity or humiliation. Any form of ill-treatment is unlawful.

No Reprisals: POWs cannot be subjected to reprisals, even in the event of harsh treatment by the

enemy. This ensures that their treatment remains consistent, regardless of actions taken by the enemy

during the conflict. Additionally, military necessity cannot justify ill-treatment of POWs.

Rights and Duties Regarding Information: While POWs are required to provide basic

information—such as their name, rank, date of birth, and military number—they are not

obligated to give any further details. The Detaining Power is prohibited from coercing POWs

into giving other intelligence or information. It is important to note that any forced extraction of

information from POWs is considered a violation of IHL.

Treatment in Custody: POWs must be held in camps that are situated away from the combat

zones to ensure their safety and humane treatment. These camps must comply with specific

standards laid out by the Geneva Conventions. While a Detaining Power can transfer custody of

POWs to another State Party to the Convention, the original Detaining State retains responsibility

for the POWs' well-being.

Repatriation and Release: Once hostilities have ceased, POWs must be released and repatriated.

However, the repatriation process does not permit the forcible return of a POW who does not wish to

be repatriated. For example, after the 1991 Gulf War, many Iraqi POWs chose to remain in Saudi

Arabia rather than return to Iraq, illustrating that POWs have the right to decide their fate post-

conflict.

Legal Status of POWs

It is essential to distinguish between a POW and other categories of individuals in conflict. A POW

is not a criminal, even though they may face prosecution for any crimes committed prior to

capture. They also do not qualify as hostages, as their detention is based on their status as

combatants and not as a means of exerting pressure on the enemy.

Conclusion
The treatment of POWs is strictly regulated by IHL to ensure their humane treatment and

protection under the Geneva Conventions. The Detaining Power is under an absolute duty to treat

POWs with dignity, and violations of this duty, such as torture or the use of POWs as human shields,

are prohibited. These protections are grounded in the idea of reciprocity, where States are

incentivized to treat enemy soldiers with respect, knowing that their own soldiers will be treated

similarly if captured.

THE LAW IN NON-INTERNATIONAL ARMED CONFLICTS

The development of international humanitarian law (IHL) governing non-international armed

conflicts has evolved significantly since 1945, particularly with the adoption of Common Article 3

of the Geneva Conventions (1949) and the later expansion of these protections through Additional

Protocol II (1977). While most armed conflicts since World War II have been non-international in

nature, the legal framework for such conflicts was less developed than that for international conflicts

until the latter half of the 20th century.

Common Article 3 and the Development of IHL for Non-International Armed Conflicts

Before the Geneva Conventions of 1949, there were limited provisions for the protection of persons

involved in non-international armed conflicts, as the focus of IHL was on international conflicts.

Common Article 3 was groundbreaking in this regard, as it extended certain protections to persons

involved in civil strife and other non-international conflicts, establishing a minimum standard for

humane treatment, regardless of the nature of the conflict.

The provisions of Common Article 3 include:

 Protection of persons who are not taking part in hostilities (including those who have

surrendered or are hors de combat).

 Prohibition of violence to life, hostage-taking, and humiliating or degrading treatment.

 Prohibition of executions without a regularly constituted court.

It was described as a "minimum yardstick" for humanitarian protection, applicable in all armed

conflicts, regardless of their nature, ensuring that non-international conflicts were subject to some

basic legal regulations.

However, Common Article 3 does not regulate the methods and means of warfare, nor does it

establish individual criminal responsibility for violations. This was a gap that would later be

addressed with more detailed treaties and judicial decisions.

Additional Protocol II (1977) and Its Limitations

The 1977 Additional Protocol II sought to strengthen the protections for non-international armed

conflicts, focusing on victim protection rather than regulating the conduct of hostilities themselves.

With 15 substantive articles, Protocol II provided more detailed rules concerning the treatment of

the wounded, the protection of civilians, and other fundamental guarantees. However, despite its

improvements, Protocol II is widely viewed as lacking enforcement mechanisms. It does not

contain provisions for grave breaches or the compulsory enforcement of its rules, which has limited

its practical impact.

The international community's response to atrocities such as the Rwandan genocide (1994) spurred

the realization that the legal framework for non-international conflicts needed stronger enforcement.

This led to the ad hoc tribunals for criminal prosecution, but even these were limited in scope.

The Role of the ICTY and Tadić (1995)

The International Criminal Tribunal for the former Yugoslavia (ICTY) played a pivotal role in

expanding customary IHL to apply more comprehensively to non-international armed conflicts.

In the Tadić case (1995), the ICTY Appeals Chamber emphasized that the inhumane actions

prohibited in international conflicts must also be prohibited in civil wars. This legal interpretation

helped bridge the gap between the treatment of non-international and international conflicts under

IHL.

Customary International Humanitarian Law and the ICRC Study

The International Committee of the Red Cross (ICRC)'s 2005 Study on Customary

International Humanitarian Law was instrumental in clarifying and codifying the customary

norms of IHL applicable to non-international armed conflicts. This Study, although controversial

in some respects, helped establish a broader legal framework for regulating the conduct of

hostilities in non-international conflicts, especially regarding the protection of civilians, detainees,

and wounded soldiers. The Study has also been pivotal in asserting that certain rules, such as the

prohibition of torture and the treatment of civilians and POWs, are customary international law.

Detention in Non-International Armed Conflicts

One significant issue that has arisen in the context of non-international armed conflicts is the legal

authority to detain individuals captured by States. Protocol II does not explicitly grant such

authority, but its provisions imply the need for humane treatment of detainees. In the case of Serdar

Mohammed v. Secretary of State for Defence (2017), the UK Supreme Court ruled that there is no

legal authority to detain individuals in non-international armed conflicts under either treaty law or

customary IHL, although detention could be justified under certain circumstances, such as UN

Security Council resolutions permitting military operations in specific regions (e.g., Afghanistan,

2001-2015).

Internationalization of Non-International Conflicts

Finally, if a non-international conflict becomes internationalized (e.g., when other States intervene

on behalf of insurgents), the conflict may come under the full scope of the Geneva Conventions,

including Protocol I if the States involved are parties to it. This transformation elevates the conflict

to an international armed conflict, subjecting it to more extensive legal regulation and oversight.

Conclusion

The development of IHL concerning non-international armed conflicts has been an ongoing

process, from the adoption of Common Article 3 to the elaboration of Protocol II and the

expansion of customary law through decisions like Tadić and the ICRC Study. While non-

international armed conflicts remain subject to a less comprehensive legal regime than international

conflicts, recent developments have established more rigorous standards and enforcement
mechanisms, particularly concerning the protection of victims, detention practices, and the

regulation of conduct during such conflicts.

IMPLEMENTATION AND ENFORCEMENT

Belligerent Reprisals

Belligerent reprisals are retaliatory actions that may violate IHL, but are permitted under certain
conditions. Historically, they were considered a legitimate tool for enforcing compliance with the
law of armed conflict. Reprisals typically involve retaliating in kind, i.e., violating the same rule of
law that the opposing party broke. However, under contemporary law, their use is increasingly
restricted due to the negative cycle of escalating violence they can generate.

 Historical Context: Reprisals were once used more frequently, particularly during wars like
World War I and II, where one side would justify actions such as bombing civilian targets in
retaliation for similar attacks.

 Geneva Conventions and Protocols: The Geneva Conventions (1949) prohibit reprisals
against persons protected by the law, including prisoners of war (POWs) and civilians.
Protocol I (1977) adds a specific prohibition on reprisals against civilian populations and
civilian objects.

 Modern Practice: In modern conflicts, the legal space for reprisals has been narrowed
significantly. The ICRC's study on customary international law (2005) asserts that reprisals
are generally prohibited in non-international conflicts, although state practice has not entirely
eliminated them. States now reserve the right to retaliate only under strict conditions,
generally requiring political approval at the highest levels to avoid the risk of escalating
conflict and undermining respect for the law.

2. State Responsibility for Violations Committed by Armed Forces

Under public international law, States bear legal responsibility for violations of IHL committed by
their armed forces. This principle holds States accountable for the conduct of their military during
armed conflicts and requires compensation for victims of violations. States are also expected to
investigate, prosecute, and prevent violations by their forces.

 Historical Examples: The Treaty of Versailles (1919) included reparations from Germany
for damages caused during World War I. Similarly, Iraq was held responsible for violations
during the 1990-1991 invasion of Kuwait, with the UN establishing a Compensation
Commission to process claims from affected individuals and countries.
  Challenges in Peacekeeping and Multinational Operations: States have been hesitant to
accept responsibility for violations committed by their forces during multinational
peacekeeping or enforcement operations, especially under UN mandates. In some cases, like
the 1995 Srebrenica massacre, legal responsibility was contested in national courts, revealing
the complexities of holding States accountable for actions in peacekeeping operations.

 Non-State Actors: A significant gap in State responsibility arises when non-State actors (e.g.,
insurgent groups or militias) commit violations. While a victorious party may assume
responsibility for violations committed by its forces after a conflict, holding non-State actors
accountable remains a challenge, as they do not fall within the same legal framework as State
forces.

3. Duty to Disseminate IHL and Provide for Its Instruction

States are required by the Geneva Conventions and Additional Protocols to disseminate knowledge
of IHL to both their armed forces and, where possible, the general population. Proper training
ensures that military personnel understand their obligations under IHL and know how to avoid
committing violations.

 Training Programs: Armed forces of most States run internal training programs on IHL,
which may include attending academic courses on international law or engaging in external
seminars conducted by experts such as the ICRC. These programs often focus on the
protection of civilians, treatment of prisoners, and prohibition of war crimes.

 Role of the ICRC: In countries where national military legal expertise is lacking, the ICRC
provides extensive support, including workshops, training materials, and legal consultations.
The ICRC’s role is crucial in fostering IHL awareness and facilitating compliance in diverse
conflict settings, especially in regions with less institutionalized legal frameworks.

4. Commanders’ Duty to Supervise Conduct and Repress Violations

Commanders have a significant role in ensuring compliance with IHL within their forces. They must
exercise proper command and control to ensure that violations are not only prevented but also
suppressed if they occur. Commanders are accountable for violations committed by their
subordinates if they fail to take action.

 Legal Obligations of Commanders: According to Protocol I (1977), armed forces must be

subject to an internal disciplinary system that ensures compliance with IHL. Article 43(1)
specifically mandates that commanders oversee the actions of their troops, while Article
86(2) extends command responsibility by holding commanders liable if they fail to prevent or
punish violations.

 Command Responsibility: A commander can be held liable under the principle of command
responsibility if:
 o They have knowledge (or should have known) about violations.

o They fail to take action to stop violations, either because they didn’t respond to
reports or because they were negligent in their duties.

o They had effective control over the troops and failed to use it to prevent abuses.

 Dereliction of Duty: The commander’s responsibility to prevent violations is crucial. Even if

a commander did not directly witness an atrocity, they can still be held accountable if they
failed to take appropriate preventive measures or respond to reports of illegal conduct.

5. States’ Duty to Implement IHL and Provide Criminal Sanctions

States are legally obliged to incorporate IHL into their national legal systems, ensuring that
violations are criminally prosecuted and punished. This includes establishing legal frameworks to
address breaches of IHL and providing for the prosecution of war crimes either at the national level
or by international courts.

 National Implementation: States must pass legislation that enables them to prosecute
breaches of IHL within their national legal systems. This includes making war crimes
punishable under national military or criminal law. For example, the UK and other countries
have specific legislation to give effect to international war crimes obligations, including the
prosecution of violations committed by their own forces or foreign nationals.

 Extradition and Prosecution: States are required to either prosecute those responsible for
war crimes or extradite them to a country willing to do so. This is part of the duty to ensure
justice is served, which can sometimes lead to international cooperation in criminal matters,
such as the extradition of suspects to the International Criminal Court (ICC).

 Jurisdictional Issues: There are challenges related to prosecuting individuals for violations
of IHL, such as the availability of evidence or the jurisdictional limitations of national courts.
Despite these challenges, national prosecution plays a critical role in upholding IHL and
ensuring accountability.

6. Criminal Investigation and Prosecution of Individuals

Criminal prosecution of individuals who commit war crimes is one of the most direct methods of
enforcing IHL. Since the Nuremberg and Tokyo Trials after World War II, individual criminal
responsibility has become a cornerstone of IHL enforcement. Criminal tribunals, such as the ICTY,
ICTR, and ICC, play an essential role in ensuring justice for atrocities committed during conflicts.

 International Criminal Tribunals: The establishment of tribunals like the ICTY

(International Criminal Tribunal for the former Yugoslavia) and ICTR (International Criminal
Tribunal for Rwanda) in the 1990s marked a major advancement in the enforcement of IHL,
 setting precedents for the prosecution of individuals accused of war crimes, genocide, and
crimes against humanity.

 Prosecution at the ICC: The International Criminal Court, established in 2002, provides a
permanent forum for the prosecution of the most serious international crimes, including war
crimes, genocide, and crimes against humanity. This court is crucial in holding individuals
accountable, especially when national legal systems are unwilling or unable to prosecute.

 The Role of National Courts: National courts also play a key role, especially in cases
involving the prosecution of one’s own nationals or foreign nationals within their jurisdiction.
States may choose to prosecute individuals domestically for crimes like torture, genocide, or
war crimes committed abroad.

7. External Scrutiny and Pressure by Third Parties

External scrutiny by third parties, including international organizations, NGOs, the media, and public
opinion, can significantly influence compliance with IHL. While not directly mandated by law, such
scrutiny creates political pressure that can lead to improved adherence to international norms.

 Role of NGOs: Organizations like Human Rights Watch and Amnesty International play a
pivotal role in documenting and reporting violations of IHL during conflicts. Their reports
can bring attention to abuses and prompt action from States, international organizations, and
the public.

 UN and International Oversight: The United Nations and its agencies, including the
Human Rights Council, often monitor conflicts and hold States accountable for violations.
The UN may use diplomatic channels, sanctions, or even peacekeeping operations to ensure
compliance with IHL.

 ICRC’s Role: The ICRC provides humanitarian aid and advocates for the protection of
civilians and prisoners of war. The ICRC’s confidential reports to parties involved in conflict
are aimed at urging compliance with IHL without publicizing sensitive information, although
it occasionally issues public reminders.

 Protecting Powers System: Established by the Geneva Conventions, the Protecting Powers
system allows neutral states to represent the interests of warring parties in monitoring IHL
compliance. However, this system has become less frequently used in modern conflicts due to
the reluctance of parties to appoint a Protecting Power.

 International Humanitarian Fact-Finding Commission (IHFFC): The IHFFC, created

under Protocol I of the Geneva Conventions, investigates allegations of IHL violations. It can
only act if invited by both parties involved in a conflict, and its findings are confidential.
While its enforcement powers are limited, it serves an important role in ensuring
accountability through impartial investigation.
In conclusion, the enforcement of IHL involves a multifaceted approach that includes legal
obligations at the State level, proactive measures by commanders, criminal accountability, and
external scrutiny. Though challenges remain, these methods work together to promote compliance
and accountability in armed conflict.

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