Law of Armed Conflict

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A. General Introduction to the Law of Armed Conflict

I. From the 1864 Geneva Convention to the 1949 Geneva Conventions and their 1977 Additional Protocols

As a historical fact, there has not been a phenomenon as consistent as violence and conflict. The continued existence of violence gave way to serious efforts to regulate it, in ways, that those not directly taking part in it, could be protected from its horrible consequences. Rules and regulations to limit the damages to human sufferings and means of their sustenance were present as early as 3000 BC. During those times the content of these rules was not purely humanitarian and warfare was and is cruel and brutal, yet their effect was and is certainly humanitarian in terms of limiting human suffering. For instance, one rule of the African traditional law prohibited the poisoning of wells, since water is existential for the survival of the people. One cannot, however, ignore the humanitarian effects of such laws helping to ebb human suffering by making violence less miserable. And thus, the law striving to make the wars less inhumane by regulating the conduct of hostilities is called the law of armed conflict, or, alternatively, international humanitarian aw or ius in bello.

Hence as an accumulation effect of the centuries' old laws, customs, norms, and traditions in making warfare humane, the modern law of armed conflict took birth against the backdrop of the utterly terrible violence during the battle of Solferino in 1859. Henry Dunant, Bertha von Suttner and others lobbied states to adopt rules regulating warfare and to limit the suffering of the wounded. The creation of the International Committee of the Red Cross (ICRC) in 1863, the first Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field of 1864, and eventually also the 1899/1907 Hague Regulations all aimed at protecting the wounded in wars. To discuss and promulgate the 1863 Geneva Convention, 16 states from mainly Europe and Latin America participated in the first Geneva Conference and agreed on the principles directed at the care for the wounded at the battlefield without any distinction of the nationality. The Hague Peace Conferences at the end of the 19th century further laid down rules and regulations aiming to give warfare a relatively more humane character. Specifically, the Second Peace Conference, which was held in 1907, laid down detailed rules and regulations related to the conduct of naval warfare. These rules were, subsequently, also confirmed in the 1949 Geneva Conventions.

The following two world wars and their devastating consequences for the civilian population gave way to the urgency in formulating universally applicable rules and regulations to curtail the horrendous character of modern warfare. The ICRC and the Swiss Government convened the diplomatic conferences after each world war to devise binding rules to care for the sick and wounded. It also formulated detailed rules to address the issue of prisoners of war. They also aimed to expand the scope of earlier conventions and to enshrine rules aiming at the protection of civilian populations both in times of war and under foreign occupation. Most importantly though the said conferences agreed to incorporate a common article in all the conventions narrating the applicability of these rules in international as well as non-international armed conflicts.

3. Weapons Law

The character and effect of certain weapons is central to end unnecessary sufferings and superfluous injuries in warfare. Early instruments like the 1868 St. Petersburg Declaration and the 1899/1907 Hague Regulations prohibit certain weapons causing suffering among the targeted persons. The St. Petersburg Declaration, which was convened by the Russian Tsar Alexander I and mainly directed at European states and monarchs, banned exploding bullets causing unnecessary injuries. Later on, the 1899/1907 Hague Regulations confirmed the ban, which prohibits the uses of projectiles, explosives from balloons, and asphyxiating gases. Today, the law of armed conflict contains specific rules on the choice of weapons as means of warfare and is complemented by weapons law in the form of treaties related to different weapons, such as the 1972 Biological Weapons Convention, the 1993 Chemical Weapons Convention, or the 1980 Convention on Certain Conventional Weapons. Moreover, speaking of the nuclear weapons though not outrightly banned by any treaty or court decisions so far, yet the International Court of Justice (ICJ) was categorical in questioning the applicability of the principle of proportionality in the context of the usage of nuclear weapons in warfare. In recent times, debates surrounding the ban of autonomous and semi-autonomous also fall under weapons law and might end up someday as an instrument of such a law.

4. Customary Law

Even in the absence of any specific treaty law, parties in a conflict made efforts to spare the lives of innocent civilians, treated prisoners humanely, and exchanged prisoners of war in the aftermath of a conflict. Many of these norms, as an effect of the consistent practice and opinio juris on the part of warring parties, gradually emerged as customary rules of International Humanitarian Law. These customs were also codified in various treaties. Nonetheless, they also continued maintaining their distinctive status as customary International Humanitarian Law. In this context, one might raise questions that given the fact that customary rules find expressions in treaty laws, then why do they need to continue having separate existence as the customary laws? The answer lies in the fact that there can be a state which is non-party to treaty law and may claim exemptions from the humanitarian laws. Albeit it efforts, such a state would find it hard to claim any exemption because of the customary rules.

II. Principles of the Law of Armed Conflict

Various treaty and customary laws enshrine the principles of the law of armed conflict. They apply to both international and non-international armed conflicts and aim to regulate (like their codification in the 1949 Geneva Conventions and 1970 Additional Protocols) the conduct of hostilities in order to "humanise" warfare without questioning the justifications of the recourse to war itself. Moreover, these principles help ensuring a balance between military necessity and humanitarian protection. Herein, it is important to understand:

Advanced: Treatment of Non-state Actors in Non-international Armed Conflicts

While international armed conflicts involve states as the sole actors, non-international armed conflicts include non-state actors such as organized armed groups fighting a state. The treatment of non-state actors under non-international armed conflicts does not grant them any legitimacy, their regulation aims to safeguard innocent civilians in armed conflicts.

1. Humanity

Wars, through the use of deadly weapons of warfare, inherently involve a horrible display of human conduct. Certain laws strive to give war a more humane character by prohibiting cruel and inhuman treatments of opponents. By laying emphasis upon the humane treatment of prisoners of war, the scope of the relevant laws later on expanded to include wounded, sick, shipwrecked as well as those not directly participating in war. For example, Article 3, which is common to all Geneva Conventions, prohibits the inhumane treatment of all those persons who are not, as well as no more taking part in the hostilities. Subsequently, the principle of humanity was further elaborated in Additional Protocol I through Article 75(1), stating that it is incumbent upon all parties in a conflict that humans

under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria. Each Party shall respect the person, honour, convictions and religious practices of all such persons.

Article 4 of Additional Protocol II emphasises for non-international armed conflicts that no circumstance in warfare can deprive a human of its right to be treated as human. Additionally, the principle of humanity has become an important norm of customary international law; states and non-state actors are equally liable to uphold the principle of humanity.

2. Distinction

Distinction implies who and what can be targeted or not in the conduct of hostilities. Due to its centrality to warfare, distinction has emerged as a "cardinal" principle in treaty as well as in customary international law, as confirmed by the International Court of Justice. In the conduct of hostilities while civilians and civilian objects are never a lawful target, military objects and combatants can in principle lawfully be attacked. Nevertheless, under very limited conditions, there can be permissible collateral damage to civilians and civilian objects. For a meaningful understanding and interpretation of this principle, however, it is important to read it in relation to other rules ensuring the safety of civilians, until and unless, they directly participate in hostilities, and prohibiting attacks against those persons categorised as hors de combat. Historically every code of violent conduct and legal tradition stressed, albeit in varying degrees, sparing those humans and objects not engaging in violence and not becoming accessories to it. Distinction was set down, for the first time, in the St. Petersburg Declaration of 1868 which states that 'the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy'. The 1899/1907 Hague Regulations (Article 25) meanwhile did not, specifically, use the word "civilians" yet, they sought to outlaw 'the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended'. Which might be interpreted as an attempt to protect the civilians in wars and draw a distinction between those armed to take part in the fighting and those avoid becoming accessory to it.

Today, Article 48 of Additional Protocol I provides that

(I)n order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.

With their emphasis in varying degree, thus, all of the above mentioned legal rules note the importance of taking utmost care in military operations to ensure that no civilian or civilian object falls victim to the military conduct; military action can only be directed against combatants or military objectives. Article 57 (2)(b) of Additional Protocol I stresses that only direct armed attacks against combatants and military objects are lawful. The realisation of this objective is so central in war that an armed attack ought to be cancelled at any stage of planning or execution rather than harming non-combatants or non-military objects.

To ensure the safety of civilian lives in non-international armed conflicts, Article (13)2 of Additional Protocol II also prohibits attacking civilian populations as well as treating any civilian person as an object of attack. It outlaws those attacks or threats of violence causing terror among the civilians. In the same vein, Article 57(1) of Additional Protocol I states for international armed conflicts that 'in the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects'. The said Protocol, furthermore, laying out the point of the centrality of the safety of civilians, in its sub-Article 57 (2)(a)(ii) stresses that all parties in a conflict should take utmost care ‘in the choice of means and methods of attack with a view to avoiding, and in any event to minimising, incidental loss of civilian life, injury to civilians and damage to civilian objects'.

3. Military Necessity

In an armed conduct, military necessity comes into play when translating the military objectives into violent force deployment. It also sets benchmarks for qualifying the means and methods in a military operation. Article 4 of the American 1863 Lieber Code defines military necessity 'as understood by modern civilised nations, consists in the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war'. However it is also noteworthy that while military necessity might be an outcome of military objectives yet every violent act ought to have its own justification for qualifying as a permissible act in warfare. And such a justification should entail the requirements of another basic principle of warfare, namely the principle of proportionality. As part of earlier attempts to explain and codify this norm, Article 23(g) of the 1899/1907 Hague Regulations prohibits 'to destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war'.

4. Proportionality

In any given armed conflict, proportionality entails the essence of perpetrating lawful violence when conducting hostilities. Due to its centrality in assessing the justifications of military conduct, the principle of proportionality is extends to the various principles as explained above. On its own, it is enshrined in Articles 51 and 57 of Additional Protocol I. Article 51(5)(b) states that 'an 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'. However the said article, being aware of the usages of humans as shields, emphasises that such treatment of civilians will not make the military targets immune from attacks. Resultantly, the responsibility for the losses to the civilian lives shall lie with those using humans as shields. Moreover, weapons law and in particular Amended Protocol II to the Convention on Certain Conventional Weapons in its Article 3(8)(a, b + c) also emphasises the principle of proportionality by prohibiting indiscriminate usage of conventional weapons against the civilian populations and civilian inhabited dwellings. With regard to the interpretation of this principle, it is common understanding among states that 'direct military advantage' speaks of the operation as a whole advantage and shall not be assessed against every bit and part of the attack.

5. To Take all Feasible Precautions

As a primary norm of the customary international humanitarian law, the principle of precaution was initially set out in Article 2 of the 1907 Hague Convention (IX). It provides that given the presence of a military target inside an undefended town or port, it is absolutely important for the military commander to 'take all due measures in order that the town may suffer as little harm as possible'. Subsequently, this principle was further thoroughly explained and codified in Article 57 of Additional Protocol I. It states that it is incumbent upon the warring parties to 'do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection'. The emphasis upon precautions to spare the civilians from the consequences of warfare has been serious and consistent as was shown by a (non-binding) UN General Assembly Resolution in 1970, which stated that 'in the conduct of military operations, every effort should be made to spare civilian populations from the ravages of war, and all necessary precautions should be taken to avoid injury, loss or damage to civilian populations'. Likewise, the Second Protocol to the Hague Convention for the Protection of Cultural Property also incorporates the element of precaution in conducting violence. Most states, in one way or the other, have thrashed out the principle of precaution (as well as the other cardinal principles) in their military manuals to train their armed forces.

III. Actors in the Law of Armed Conflict

1. States

States as traditional subjects of international law play an important role in the law of armed conflict like in any other field of public international law. For centuries, they have been an important actor in armed conflicts: They have started armed conflicts, they have participated in hostilities, they occupied territory and they came together to negotiate armistices. In collective efforts, states also assembled at international peace conferences, like the ones leading to the conclusion of the first Geneva Convention from 1863, the 1899/1907 Hague Regulations or the 1949 Geneva Conventions. The role of states is also illustrated in the two categories of armed conflicts that exist in the law of armed conflicts (cf. common articles 2 + 3 of the Geneva Conventions): There are international armed conflicts between two or more states and there are so-called non-international armed conflicts that relate to conflicts between a state and a non-state actor or between several non-state actors on the territory of a state. Depending on this classification, a different set of rules and principles applies. While international armed conflicts are regulated by the four Geneva Conventions and Additional Protocol I (as well as by custom), non-international armed conflicts are governed by common Art. 3 to the Geneva Conventions and Additional Protocol II. If a state that is involved in a non-international armed conflict is not a party to Additional Protocol I, only common Art. 3 of the Geneva Conventions applies together with customary rules and principles in line with the principle of state consent.

2. Non-State Actors

Over the past decades, more and more non-international armed conflicts broke out, with one state fighting an organised armed group and several ones within its territory (cf. common Art. 3 to the Geneva Conventions). This explains the rise of so-called non-state actors. In armed conflicts like the ones in Syria or Colombia but also in the aftermath of 9/11, rebel and terrorist groups were parties to the conflict and participated in the hostilities as armed non-state actors. The law of armed conflict directly addresses them in common Art. 3 to the Geneva Conventions and in Additional Protocol II. Other non-state actors involved in armed conflicts include private military and security companies that support a party to the conflict. Despite their active role in conflicts, non-state actors do not participate in the actual law-making procedure in the law of armed conflicts. They are not a party to any treaties in international humanitarian law, which are concluded between states exclusively. In peace negotiations, on the other hand, non-state actors participate together with states. Their actions are also only indirectly considered when interpreting the law of armed conflict, and when identifying rules and principles of customary law. Compliance of armed non-state actors with the laws of armed conflict still represents a challenge in wartime.

3. The International Committee of the Red Cross

The International Committee of the Red Cross (ICRC) is the "guardian" of the law of armed conflict. Established in 1863 at the initiative Henry Dunant after the Battle of Solferino as a Swiss association, the ICRC is mandated to protect people affected by armed conflicts and violence. As a historical subject of international law, it enjoys a special international legal status that is different than the one from NGOs or international organisations. The ICRC is guided by seven principles: Humanity, impartiality, neutrality, independence, voluntary service, unity & universality, which allow access to all parties to a conflict without any condemnation.

IV. Use of Force and the Law of Armed Conflict

There is a strict separation between the ius ad bellum and the ius in bello. Based on the rationale of international humanitarian law, the initial violation of the use of force that started the conflict is not considered when evaluating the legality of the conduct of hostilities. The aggressive and the victim state ought to be the subject of the same rules and principles in warfare.

B. Selection of Current Challenges in the Law of Armed Conflict

Beyond the frontiers of laying down elaborative and consensual rules to make violence less miserable in wars there lies the challenge of inventing and deploying weapons which might not impede the human capacity and willingness to abide by these rules. In present times, with the invention and introduction of various new technologies of warfare such a challenge has become more pronounced than ever. The following discussion highlights some of these challenges.

I. New Technologies

1. Semi-Autonomous Weapons

In terms of the revolutions in warfare technology, the twenty-first century is proving to be the most advancement frenzy so far. Whereof the leap from manned military technology to the unmanned was rapid and reciprocal. Such a swiftness in development and deployment when provides the strategic and operational edge, it also raises numerous legal questions in upholding the jus in bello principles of warfare like distinction, necessity, proportionality, etc. Due their widespread usage against non-state actors, combat drones raised these questions more often. For their precision and persistence in killing, combat drones were presented as the "weapon of choice". In terms of saving lives of those deploying the combat drones, the results are certainly positive. However, the losses of lives when targeting the alleged terrorists, are in many cases, not proportionate to the actual security threat they pose. For instance, in cases of the US drone attacks against terrorists in Pakistan, Yemen, and Somalia, various governmental and non-governmental studies point to the fact that in contrast to their technological reputation for precision---combat drones are not that much precise, operationally. Nonetheless, the US remains adamant that the combat drones are precise and avoid losses to the innocent lives. For example, the Obama administration in its report disclosing the civilian killings in drone warfare in 2016 recorded that the civilian deaths are less than 200. However, a closer scrutiny of these numbers suggests that perhaps the US government counts only children and women deaths as civilians. And the rest are eligible targets under the laws in war, at least according to the US government. It seems even more probable proposition because various reports counting the deaths out of the US combat drones also estimate that there are children and women killed in drone warfare and their numbers are almost equal to the US estimates of total civilian deaths. In view of these discrepancies surrounding the loss of innocent lives, one may notice that the dispute over evidence while on the one hand seems to be inherent when it comes to the application of laws in war. On the other, it points to the fact of the mere confidence of the governments in the precision of combat drones.

However, at times, such confidence did translate into reality of precision strike, as combat drones pinpointed the terrorists on various occasions. For instance, the killing of a Pakistani Taliban leader in a drone strike, wherein the missile attack was so precise that even it did not cause any harm to the house, bore testimony to this fact. In this case, it seems that the drone operators took 'all feasible precautions' before striking down the intended target, and adequately fulfilled the principles of necessity and proportionality. Hence, concerning the technological prowess of combat drones, it is absolutely evident that they have the manifest ability to be precise and proportional. Unlike the soldiers on the battlefield, combat drones do not fear for their safety, and hence, in principle can withstand risks while pinpointing the target. In practice, however, the usage of combat drones, specifically against the violent non-state actors, in recent times, raised more questions, concerning the fulfilment of humanitarian principles than answering them. In this context, one needs to closely study the combat drone deployments in Pakistan, Yemen, and various African states involving the United States and French militaries, against terrorists.

2. AI and Autonomous Weapons

Within the context of the weapons of warfare, autonomy is a relative term. It may range as well as encompass launching a weapon into the battlefield to the point of successfully selecting, engaging, and neutralising the target. To make the concept more understandable, the United States Department of Defense underlines that a weapons system is autonomous when 'once activated, (it) can select and engage targets without further intervention by a human operator'. At a time when, in the case of semi-autonomous weapons while humans remain in the loop when deciding and targeting the enemy combatants on the battlefield, however, with the emergence and usage of the fully automated weapons of warfare, the humans deem to be handing over control over decision as well as practice to engage the opponents to machines. Such an emerging scenario poses serious questions for the laws of warfare. More specifically, it amplifies the challenge to the principle of proportionality whose applicability was already turning out to be a daunting one in case of the semi-autonomous weapons. In this context, one understands that the entire notion of warfare is predicated upon the assumption that when humans face off humans on the battlefield, inherently, such a face-off imposes certain limitations on the excessive use of violence among the adversaries to achieve a particular as well as the general objective of warfare. Whereof humans might decide instantly that perhaps a certain objective of warfare can be better served by only injuring the enemy combatant rather than killing her. To the contrary, an automated gun would hardly bother to take such an instant decision at the battlefield and spare the life of a human in return for only injuring her. Likewise, speaking of the strategic and nuclear weapons, the mere presence of autonomous weapons on the battlefield can be tempting for the adversary to jump to the conclusion that might these weapons in a first strike scenario---take out the second-strike capability, and therefore, it is prudent to unleash the strategic weapons in advance. Such a scenario while on the one hand can make escalation scenarios in warfare more uncertain and dangerous. On the other hand, it can also undermine the principle of proportionality, concerning the particular objective of warfare.

Moreover, AI powered autonomous weapons can also have serious repercussions for the principle of distinction. For instance, though an automated gun is fed with various image classifications such as soldier uniforms, insignias, numerous types of rifles and ammunitions yet the softwares commanding the operations of a gun can be hacked and fed with different image classification. Likewise, there are also chances that a gun may also indulge in automatic fire on the basis of mistaken identity. For example, in certain experiments guns have mistaken turtles as rifles. However, despite the fact of dominant voices raising serious ethical, legal, and political questions about the nature as well as certain characteristics of autonomous weapons challenging the humanitarian principles in wars; there are some scholars who point to the fact that perhaps automated killing machines in the battlefield can better comb through the security threat, and thus, without fearing for its own safety, target the militarily vital object or combatant.

In this context, one might presume that innovation in weapons is driven by the understanding that it might spare the lives of those seeking an edge in technology, yet it is also important to understand that these innovations must not make laws in warfare ineffective. For such understanding and reason underpinned the various instruments of international humanitarian law. Beginning with St. Petersburg Declaration and the Hague Declarations and Regulations, it was laid down that along with the precaution, only those weapons should be deployed in warfare which assure the avoidance of unnecessary injury of the targeted persons. Inside, the Geneva Conventions and Additional Protocols, Articles 51 and 57 stressed the importance of avoiding excessive physical as well as material damages when targeting the adversary in a warfare. Avoidance of excessive damage in terms of the autonomous weapons also depends upon the efficient decision-making and such an efficiency depends upon the thorough analysis of the choices made in targeting. Autonomous weapons based on data feeds, however, reach decisions within moments, and thus, might undermine the role of human judgement. Already we know that with regard to the semi-autonomous weapons, interplay between human judgement and machines have often produced horrible consequences when it comes to upholding the humanitarian principles in warfare. Autonomous weapons, therefore, do not seem to be offering any better alternatives to humans when taking decisions of applying kinetic force. The fulfilment of humanitarian principles, certainly, demands more role for the human judgement, not less.

3. Cyber Weapons

In present times, a networked world has brought upon an unprecedented level of prosperity, and thus, as a consequence an extraordinary challenge to secure the very platforms underpinning this networking. In such networks, signals across and within the digital platforms remain the critical mass. Any ill-intended intrusion or tempering with the signals can turn a benevolent digital tool into a destructive weapon. In this context, spy wares and malicious software codes have already brought down the governmental digital platforms in Estonia and destroyed certain nuclear reactors in Iran. Whereas scenarios like shutting down the electricity grids, bringing down a commercial airplane, etc., by introducing malware in their control and navigation systems, are also being drawn. These scenarios render the conduct of violence an utterly discreet activity: wherein the questions of distinction and proportionality will once more come to the fore, but in a manner where these humanitarian principles shall be extremely difficult to apply and assess. Even to begin with, there are questions about terming damages caused by cyber weapons as an 'attack' as well as fixing the responsibility for such acts. The dominant role of violent non-state actors in contemporary violence further complicates the situation and renders questions complex.

To answer such questions, International Committee of Red Cross, therefore, notes that only state practice can help finding adequate answers to these questions. For instance, in cases of damages to Iranian and Estonian infrastructures, there was no claim of responsibility. And meanwhile, when selecting and hitting these targets, there was no regard for the principle of distinction either. Specifically speaking of the principle of distinction, which, along with the Hague Regulations, was effectively laid down in Article 48 of the Additional Protocol I to the Geneva Conventions of 1949 becomes problematic when applied in the context of cyber warfare. For example, there can be a scenario that due to the easiness and less costly prospects, at least for the attacker, a military commander decides to shut down an electricity grid by employing a cyber attack; so that the command and communication structures of a nearby military installation may be rendered useless yet the same targeting can also turn off electricity in a nearby hospital and cause scores of deaths. In such a targeting, there is a loss of innocent lives albeit as an unintended consequence of a cyber attack. Besides violating the principle of distinction, such an attack also ends up undermining the principles of humanity, a military necessity as well as proportionality.

To address these issues of uncertainty and complexity, some scholars have suggested to bring in binding international conventions protecting civilian digital platforms. Nonetheless, questions shall arise when targeting those platforms powering civilian and military installations simultaneously. In such a scenario, there is never a question of either and or rather the digital platform is plugged into both installations. Speaking of the functioning of cyber platforms, one can assume that such a dilemma will not be specific to the given case rather it will run across numerous platforms, thus, complicating any military targeting decisions. Hence when a targeting decision is taken and executed, in all probability, it will give rise to questions about the applicability of proportionality. After all, pinpointing a networked target is extremely difficult and chances of indirectly targeting civilian cyber infrastructure while bringing down a military one are higher during a conflict. Massive cyber attacks against the Ukrainian government's digital infrastructure once more point toward such trends and difficulties when targeting cyber objects. Tracing the sources to fix responsibility for usages and damages caused by cyber weapons is another dilemma, potentially, making the violence in war a muddier business and adding another layer of complexity in applying the legal principles to ensure transparency as well as accountability. Apparently, one can assume that, unlike autonomous and semi-autonomous weapons, cyber weapons due to their nature, are indiscriminate and disproportionate. Hence to make their use subject to the given humanitarian rules and principles is bound to pose serious challenges.

II. Protected Groups and Objects

The law of armed conflict was originally created by states to spare the civilians and the civilian population from the consequences of the conduct of hostilities. The principles of distinction prohibits direct attacks against them. Additionally, some provisions of the Geneva Conventions and their additional protocols address other groups or objects, such as medical personnel and establishments, cultural property, or the natural environment. Their protection is often linked to the protection of civilians and civilian objects, but these provisions install special protection for specific protected groups and objects that differs from the general protection of civilians and civilian objects. The three mentioned examples are only a selection of protected groups and objects which are particularly vulnerable or valuable in armed conflicts.

1. Medical Personnel

The first Geneva Convention from 1864 was concluded to take care of the wounded and sick combatants of all belligerent states who were hors de combat (out of the battle). Without medical personnel and medical care, their protection would have remained meaningless. Hence, medical personnel is of particularly high value due to the essential role of medical care to each belligerent party. Today, several of the Geneva Conventions as well as Additional Protocol I include provisions on the protection of medical personnel, medical units, and medical establishments. Articles 24 and 25 GC I, Articles 36 and 37 GC II, Art. 15 AP I on international armed conflicts, and Art. 9 AP II on non-international armed conflicts contain an obligation to respect and protect medical personnel under all circumstances: Medical personnel and medical establishments enjoy protection and cannot lawfully be made an object to an attack. In the battlefield, they enjoy protection when fulfilling their medical duties in conformity with medical ethics. Attacking them intentionally is a war crime under Articles 8(2)b.xxiv and 8(2)e.ii of the Rome Statute. If medical personnel itself participates in the hostilities, they lose their protection. Medical personnel includes civilians and militaries temporarily or permanently assigned to medical purposes, such as the search for, collection, transportation, diagnosis or treatment of the wounded, sick and shipwrecked, the prevention of diseases, or the administration or operation of medical units or medical transports. If they fall into the enemy's hands, they are not considered prisoners of war and must be set free. The opposing party may, however, retain them to give medical care to prisoners of war, but they cannot be asked to perform acts contrary to medical ethics. Only people with the official assignment of medical tasks by the competent authority of a belligerent party enjoy the special protection as medical personnel. To identify medical personnel, it is asked to use the distinctive sign of the red cross, red crescent, or red crystal worn on clothes. In the past, the distinctive sign has made medical personnel and medical units more vulnerable in the field, since they were visible to the enemy's forces and have been attacked unlawfully.

2. Cultural Property

Cultural property enjoys special protection in armed conflicts. The two additional protocols contain provisions specifically protecting for cultural property. Additionally, the Hague Convention for the protection of cultural property in the event of armed conflict from 1954 and its two protocols complement the protection based on the Geneva law. The Preamble of the 1954 Hague Convention explains the rational behind the protection of cultural property in armed conflicts: "any damage to cultural property, irrespective of the people it belongs to, is a damage to the cultural heritage of all humanity, because every people contributes to the world's culture." Examples from the past, like in the Mali conflict when a series of intentional attacks by parties to the conflicts against mausoleums, mosques and historical monuments in the city of Timbuktu led to an international outcry, illustrate the meaning of cultural property and its importance to all. Destruction of cultural heritage can amount to a war crime under the Rome Statute,

3. Natural Environment

The environment has been called a "silent victim" of war. Art. 35(3) Additional Protocol I (AP I), regulating international armed conflicts, specifically protects the "natural environment" from "widespread, long-term and severe damage." This cumulative threshold has never been applied to an actual conflict since either some states to the conflict were not a party to Additional Protocol I and AP I did hence not apply. Moreover, the vague and undefined threshold of Art. 35(3) AP I has never been reached due to its vagueness, not even in the cases of the Vietnam war and the deployment of Agent Orange, or of the burning oil wells in Kuwait in 1991. During the negotiations of AP I, no consensus among states was reached regarding the definitions of the threshold. For instance, it is unclear whether "long-term" is measured in years or decades, based on the travaux préparatoires the latter seems to be the case.

Simultaneously to the negotiation of AP I, states drafted and adopted the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD Convention) which contains a similar threshold with almost identical wording ("widespread, long-lasting or severe"). In this case, however, states were able to agree on a definition in a memorandum of understanding: long-lasting, for instance, means "lasting for a period of months, or approximately a season" in terms of the ENMOD Convention.

In addition to the specific protection the "natural" environment enjoys under Art. 35(3) AP I (similar protection of the "natural" environment is also included in Art. 55(1) AP I but explicitly linked to the survival of the civilian population), elements of the environment can constitute civilian objects, since they rarely serve military purposes and hence only rarely represent a military object that can lawfully be attacked. The principle of distinction thus protects the parts of the environment. The other cardinal principles of the law of armed conflict, like proportionality, military necessity, and precautions in an attack, also require the belligerent parties to at least consider the protection of the environment in their conduct of hostilities.

In non-international armed conflicts, which are regulated by common Art. 3 to the Geneva Conventions and Additional Protocol II, there exists no specific provisions on the environment, hence the cardinal principles as well as the protection of elements of the environment as civilian objects apply.

In the 2005 ICRC study on customary international humanitarian law, three rules were identified that protect the natural environment. There legal nature, however, is disputed and represents in parts at least progressive development of the law. Additionally, the UN International Law Commission has adopted 27 principles on the topic "Protection of the Environment in relation to Armed Conflicts" with the aim of enhancing the protection of the environment by combining the law of armed conflict with human rights law and international environmental law obligations. They address the environment before, during, and after an armed conflict and represent codification as well as progressive development of international norms. They also include suggestions on how to improve environmental protection in an armed conflict.

In sum, the natural environmental enjoys protection in armed conflict, even though the exact obligations are far from being clear. Most importantly, the protection of the environment as a civilian object and by other provisions indirectly protecting it, such as Art. 56 AP I, make a difference in the battlefield.

C. Interplay with Other Fields of Public International Law

The law of war represented the lex specialis in war-related matters. With the adoption of the 1949 Geneva Conventions and the "humanisation" of the law of war since the post-WW II period, there is agreement today among states and scholars that human rights can complement the law of war under certain conditions, particularly non-derogable human rights such as the right to life. Kolb has described the relationship of international humanitarian law and human rights as follows: "In 1945, IHL and HRL were as distant as Scylla and Charybdis; today they are as inseparable as Castor and Pollux." Regional and universal human rights systems as well as the International Court of Justice have clarified questions at the intersection of human rights law and the law of war in the past decade. In 1996, the International Court of Justice in the advisory opinion on the Legality of the Threat or Use of Nuclear Weapons stated that [. . .] the protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities." In 2005, it specified the interplay in the Wall Advisory Opinion by stating that "[a]s regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law." These options of an interplay have been further elaborated on in scholarship, but in the end it is a case-by-case analysis on whether and how the law of war is complemented by human rights.

In addition to certain human rights, other fields also co-exist or apply simultaneously to the law of war. The UN International Law Commission in its work on "The Effects of Armed Conflict on Treaties" in 2011 stated in draft Article 7 that there exists an implication that certain treaties continue to "in operation" during an armed conflict. The Commission annexed a list of treaties that presumly continue to apply during armed conflict to the draft principles, these include treaties like international environmental law, treaties of friendship, commerce and navigation and agreements concerning private rights, or treaties declaring, creating or regulating a permanent regime or status or related permanent rights, including treaties establishing or modifying land and maritime boundaries. Consequently, international environmental law and in particular so-called multilateral environmental treaties are not ipso iure suspended in case of an armed conflict. The World Heritage Convention or the Biodiversity Convention are treaties that are studied today in terms of their continued application in war zones. Is has to be determined on a case-by-case study whether and how other fields of public international law complement the law of war.

International criminal law is another field of public international law that complements the law of war, but in a very special way. In the Rome Statute, states have codified and criminalised war crimes, which are conducted during hostilities, thus relating to the law of war. The Office of the Prosecutor of the International Criminal Court, however, only investigates crimes as agreed upon in the Rome Statute, thus separating the law of war from international criminal law and resulting in differing legal standards.

Further Readings

• ICRC, Casebook on "How does law protect in war?," available at https://casebook.icrc.org/ (open access).
• Commentaries to the Geneva Conventions, available at https://www.icrc.org/en/war-and-law/treaties-customary-law/geneva-conventions (open access).
• ICRC, Customary IHL Database, available at https://ihl-databases.icrc.org/en/customary-ihl (open access).
• ICRC, IHL Database, available at https://ihl-databases.icrc.org/en (open access).
• Fleck, Dieter (ed.), The handbook of international humanitarian law, Oxford University Press, 2021.