Publications by Year: 2004

Article 43 of the Regulations Respecting the Laws and Customs of War on Land, annexed to Hague Convention (II) of 1899 and (IV) of 1907, is the linchpin of the international law of belligerent occupation. Two diverse obligations are imposed on the Occupying Power by Hague Article 43: (a) to restore and ensure, as far as possible, public order and life in the occupied territory; (b) to respect the laws in force in the occupied territory unless an “empêchement absolu” exists. The first obligation has to be implemented by the executive (and the judicial) branch of the Military Government of the Occupying Power, whereas the second obligation devolves to the legislative branch. The first obligation requires acts of commission, and the second duty postulates primarily acts of omission. Neither obligation is absolute. Although in principle the Occupying Power has to maintain the laws in force in the occupied territory, it is generally understood that the preexisting legal system can be modified through new legislation when a necessity arises. In principle, any legislation enacted by the Occupying Power in the name of necessity applies in the occupied territory during the occupation and not beyond that stretch of time. Article 64 of the 1949 Fourth Geneva Convention expresses in a more precise and detailed form the terms of Article 43 of the Hague Regulations. Without exhausting the concept Article 64 allows for suspension or repeal of existing laws and the enactment of new legislation in three exceptional situations: (i) the need of the Occupying Power to remove any direct threat to its security and to maintain safe lines of communication, (ii) the duty of the Occupying Power to discharge its duties under the Geneva Convention, and (iii) the necessity to ensure the “orderly government” of the occupied territory. Obviously, the orderly government exception becomes more prominent under conditions of prolonged occupation. It is, therefore, required to establish a litmus test for resolving disputes concerning the validity of legislation enacted by the Occupying Power in the name of orderly government. How far can the Occupying Power go in tampering, in the name of necessity, with the institutions of government of the occupied territory? Under Article 47 of the Fourth Geneva Convention, should institutional changes be introduced by the Occupying Power, they must not deprive the civilian occupation in the occupied territory of any benefits conferred by international humanitarian law. But the paramount question is whether the Occupying Power can transform radically the political institutions of government in the occupied territory when its action does not affect adversely those benefits. While the practice of States is somewhat ambiguous, it is believed that such changes ought to be undertaken only by the territorial sovereign. The Occupying Power should not be allowed to interfere with fundamental institutions of government in the occupied territory, inasmuch as there is a disquieting possibility that the structural innovations (albeit temporary in theory) may take root and have enduring consequences. Under the Hague Regulations and the Fourth Geneva Convention, the rules stated above relate only to belligerent occupation. However, there is possibly room for their application by analogy also in circumstances of peacebuilding, subject to any binding resolution adopted by the United Nations Security Council.

Under Article 43 of the Hague Regulations, an occupying power must restore and maintain public order and civil life, including public welfare, in an occupied territory. This is not a result it has to achieve, but an aim it has to pursue with all available proportionate means not prohibited by International Humanitarian Law (IHL) and compatible with International Human Rights law. It may suspend the derogable provisions of the latter — but is not obliged to do so - if necessary for that purpose. Local legislation and institutions based upon such legislation must be respected by an occupying power and by any local authorities acting under the global control of the occupying power. New legislation or derogations from existing legislation are however admissible, for the period of the occupation, if essential for (1) the security of the occupying power and of its forces, (2) the implementation of IHL and of International Human Rights Law (as far as the local legislation is contrary to such international law), (3) the purpose of restoring and maintaining public order and civil life in the territory, (4) the purpose of enhancing civil life during long-lasting occupations, (5) or where explicitly so authorized under UN Security Council Resolutions. These obligations and limitations also apply to post-conflict reconstruction efforts, including constitutional reforms, economic and social policies. Article 43 also applies to peace operations when they are at all subject to IHL, i.e., UN authorized or mandated operations resulting from an armed conflict or consisting of military occupations meeting no armed resistance, independently of whether the conflict or operation is authorized by the Security Council and of the aim of the operation. IHL is however not applicable if and as long as the operation meets the consent of the state on the territory on which it is deployed. The applicability of IHL to UN run operations, including UN international civil administrations, is more controversial, even when they result from an armed conflict. When Article 43 is not applicable to such a peace operation, the latter is nevertheless confronted with problems similar to those of an occupying power, which deserve solutions similar to those adopted in State practice under Article 43. Limits to such application of Article 43 by analogy are the purpose of the peace operation defined by the UN Security Council, specific instructions by the Security Council and the fact that UN Human Rights standards, even if laid down in soft law instruments, are binding upon UN operations. Both occupying powers and those involved in peace operations must take into account, when engaged in the restoration or maintenance of public order and civil life according to Article 43 or in legislation permitted under that article, that they are not the sovereign. They should therefore introduce only as many changes as absolutely necessary under Article 43 as understood above and stay as close as possible to similar local standards and the local cultural, legal and economic traditions.

Over the years, states, supported by other actors, have devoted considerable effort to devising and implementing in peacetime preventive measures aimed at ensuring better respect for international humanitarian law (IHL). Dissemination of IHL generally, within academic circles and among armed forces and armed groups has been reinforced, and IHL has been increasingly incorporated into military manuals and doctrine. Domestic legislation and regulations have been progressively adopted or adapted, and the necessary structures put in place to give effect to the rules contained in the relevant IHL treaties. In many states specific advisory bodies, such as National IHL Committees, have been established and international humanitarian law is increasingly being considered as part of the political agenda of governments. At the same time, by encouraging the national prosecution of war crimes and, more significantly, by the establishment of international bodies such as the ad hoc international criminal tribunals and the International Criminal Court, the international community has concentrated its efforts since the early 1990s on the repression of serious violations of international humanitarian law. Despite these advancements in preventive and repressive measures, however, insufficient respect for the rules of international humanitarian law during armed conflict remains an abiding problem. It is the result of both the lack of political will and practical ability of parties to an armed conflict — both States and armed groups — to comply with their legal obligations. While efforts to improve both the prevention and repression of IHL violations are fundamental and must continue, the question of how better compliance with international humanitarian law can be ensured during armed conflicts thus deserves greater attention. In 2003, the International Committee of the Red Cross (ICRC), in cooperation with other institutions and organizations, organized a series of regional expert seminars to examine this issue. Regional seminars were held in Cairo, Pretoria, Kuala Lumpur, Mexico City, and Bruges (Belgium). Participants included government experts, parliamentarians, academics, members of regional bodies or non-governmental organizations, and representatives of National Societies of the Red Cross and Red Crescent. 

According to an uncontroversial principle of customary international humanitarian law (IHL), parties to an armed conflict must distinguish between the civilian population and combatants and between civilian objects and military objectives. In order to spare civilians and the civilian population from hostilities and their effects, it is essential to define who and what may be attacked. The first rule regarding attacks (by acts of violence2 ) is that the intended target must be a military objective. Once a military objective is the target, under additional rules, which are not discussed here, the attack may nevertheless become illegal if excessive collateral damage affecting civilians or civilian objects must be expected. Furthermore, even when attacking a lawful target, precautionary measures to spare civilians have to be taken. While the main aim of the law is to protect persons, it is appropriate to discuss first what objects may be attacked. This permits to clarify the criteria, which make targets legitimate. In addition, attacks on objects involve the greatest danger for persons who are beyond any doubt civilians. 

When does the application of international humanitarian law properly begin and end in modern conflicts? Classical international law distinguished three types of armed conflict: (1) war; (2) civil war; and (3) armed hostilities short of war. The laws of war were applicable in time of war--from the declaration of war until the formal reestablishment of peace (for example, by the signing of a peace treaty). The laws of war were not applicable in civil wars--which were considered internal matters--unless a state formally recognized the insurgency as a belligerent. And, of course, the laws of war were not applicable as a formal matter in hostilities short of war. Prior to the drafting of the Geneva Conventions in 1949, the applicability of the “law of war” was, therefore, delimited by formal acts of state such as a formal declaration of war or a formal recognition of belligerency. The Geneva Conventions substantially revised this formalistic, de jure approach--making contemporary international humanitarian law applicable during armed hostilities that de facto constitute “armed conflicts.” In both international and non-international armed conflicts, the Geneva Conventions, in general, govern the conduct of hostilities for the duration of the “armed conflict.” This background note briefly outlines the regime established in the Geneva Conventions and summarizes several ambiguities in these rules. Because the scope of application regimes differ sharply between international and non-international armed conflict, these two types of conflict are analyzed separately. 

This policy brief reviews the rules of International Humanitarian Law (IHL) applicable to the conduct of hostilities in urban environments, and identifies key legal provisions designed to enhance the protection of civilians in these areas.

In attempt to move beyond a past marked by conflict, terror, and violence, Iraq has many hurdles to overcome in achieving social reconstruction and transitional justice. This study reflects the views of Iraqis regarding past human rights abuses, justice and accountability, truth-seeking and remembrance, amnesty, reparations, and reconciliation. Using this data, the study makes recommendations on how Iraq may address the needs and wants of its citizens for fairness, accountability, and justice, while simultaneously prioritizing a peaceful future.

This note examines the legal aspects, under international humanitarian law (IHL), of Israel's practice of demolitions of Palestinian houses in the Occupied Palestinian Territory (OPT). It outlines the basis, history, and practice of house demolitions, sets forth the relevant IHL provisions that impact house demolitions, and reviews the positions of the different parties involved on this issue.

Urban warfare constitutes one of the most serious threats to the security and integrity of civilians in times of war. It represents, consequently, one of the most challenging areas of International Humanitarian Law (IHL) in practice. This note reviews the rules of IHL applicable to the conduct of hostilities in urban environments, and identifies key legal provisions desgned to enhance the protection of civilians in these areas.

This briefing note discusses the legal implications under international humanitarian law (IHL) of erecting and maintaining a separation barrier in the Occupied Palestinian Territory (OPT). The main objective of this note is to review the applicable IHL rules and present the various legal perspectives of the parties involved in the debate on the legality of the separation barrier, particularly in the context of the advisory proceedings before the International Court of Justice in the Hague. This briefing note will be updated as arguments of the various parties are presented to the courts, and as the courts’ rulings are made public.

The use of computers in modern warfare stretches back over decades. Computers have been employed for functions that range from managing materiel and personnel flows into an area of operations to sorting intelligence data and improving the precision capabilities of weapons. In recent conflicts, however, we have witnessed their transformation into a “means of warfare” (weapon) and modern militaries are busily developing information technology “methods of warfare.” This article briefly addresses the legal issues surrounding computer use in classic kinetic-based warfare. Attention then turns to the most significant phenomenon for humanitarian law, namely the employment of information technology during network-centric, four-dimensional operations, which increasingly characterize twentieth-first century conflict.