Intermediate Law of Armed Conflict Course

Welcome to the Distance Learning phase of the Intermediate Law of Armed Conflict course. As a Canadian Forces member, you are about to begin a very important component of your development as an officer or as an NCM. It has been designed to give you the right tools to address the complexities of today's battlefield. It will require time and dedication on your part but it will undoubtedly expand your appreciation of the legal considerations embedded within the planning and execution of military operations in the full spectrum of conflicts.

During the classroom portion of the course, there will be lectures, syndicate discussions and exercises. The syndicate activities will require some individual preparation, most of which will occur on the evening prior to the activity. Furthermore, you can anticipate a moderate workload in the evenings in order to prepare the following day.

The syndicate discussions and exercises will be lead by a legal officer who will act as a DS. The regular CFC DS are not required to prepare any formal contribution, but they will be provided with all the course material and will be welcomed to actively participate in the discussions and exercises.

General Description of LOAC Courses Program

Rationale for the Course and Context of its Development

This course has been designed to deliver a graduate standard of LOAC training to CF leaders, in order to prepare them to conduct operational missions in a lawful manner, having in mind the CDS stated end-state for transformation:

“A CF that is strategically relevant, operationally responsive and tactically decisive, supported by an effective, efficient and adaptable defence institution; capable of operating within a dynamic and evolving security spectrum.”

It also supports the JAG’s stated strategy, which emanates from the vision “that justice be done in the defence of Canada" and embodies a value system that fosters respect for human rights and international humanitarian law.

Description of the ILOAC

Course Structure, Expectations, Time Management Planning and Sequence of Phases

The Intermediate LOAC course is comprised of two phases, a Distance Learning (DL) phase followed by an in-residence phase. The Distance Learning phase of the ILOAC is a pre-requisite for the attendance to the residence phase that

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concludes the ILOAC course. In class, we will deepen and expand the notions already covered through lectures and panels, syndicate exercises and discussions.

As you progress through the DL phase, you will be exposed to mandatory readings, informative films and illustrative videos. It is essential that you invest sufficient quality time in this personal work. The residence phase needs to be thoroughly prepared in order for you to contribute meaningfully to the lectures, discussions and exercises. You should expect the DL phase to take approximately five hours of constant attention.

During this phase, you will also have access to supplementary readings that would not only prepare you further for the residence phase, but also constitute an excellent personal reference library. These texts and references reflect the state of the law, current debates and emerging areas of interest.

The completion of the Distance Learning will allow you to register for the five-day residence portion of the ILOAC course. Upon completion, you will have 12 months to register through your unit, formation training officer, or CFMLC. The details of the registration process will be given to you at the end of the DL phase.

Introduction to Module 1

LOAC Key concepts

In this module, we will examine the general concepts that are essential to understand the nature and the scope of LOAC. It also covers the key definitions and rules governing the applicability of the various bodies of the LOAC. These questions are instrumental in determining which rules will apply to a given CF international operation.

The module will be concluded by the video "Fighting by the Rules”, which shows how LOAC has to be applied during various types of conflicts as well as the importance of LOAC training.

International Law

International law is the body of law, which governs relations between sovereign states. It is a system of rules and principles created primarily by states, which cover almost every facet of inter-state activity. It is the vital mechanism without which an increasingly interdependent world could not function. International law deals with issues such as nationality, the use of armed force and the human rights of individuals. The practice of International Law is directly related to diplomacy, politics and the conduct of foreign relations.

From: LOAC OP/TAC Level

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Description and Purpose

The LOAC1 has been defined as the body of international law which sets out rules of behaviour in an armed conflict. “It sets out minimum standards applicable to the conduct of hostilities designed to limit unnecessary human suffering, ensure respect for human dignity, and facilitate the restoration of peace.”2

International law includes both treaty law and customary international law. From a CF perspective, the relevant treaty law of the LOAC is identified in the CF publication B-GG-005-027/AF-022, Collection of the Documents on the Law of Armed Conflict. Key treaties include the Hague Conventions,3 the Geneva Conventions,4 the Additional Protocols to the Geneva Conventions,5 as well as key weapons control treaties such as the Ottawa Convention6 and the Convention on Certain Conventional Weapons.7

References

1 See William Fenrick, “The Development of the Law of Armed Conflict through the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia” (1998) 3 Jn of Armed Conflict 197; McCoubrey, International Humanitarian Law: The Regulation of Armed Conflicts (Aldershot: Dartmouth Publishing Company Limited, 1990); Fleck, The Handbook of Humanitarian Law in Armed Conflicts (Oxford: Oxford University Press, 1995); McCoubrey and White, International Law and Armed Conflict (Aldershot: Dartmouth Publishing Company Limited, 1992); Dinstein, The Conduct of Hostilities in International Armed Conflict, 3rd ed. (Cambridge: Cambridge University Press, 2004); Bothe et al., New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (The Hague and Boston: M. Nijhoff, 1982); Rogers, Law on the Battlefield, 2nd ed (Manchester: Manchester University Press, 2004).

2 See B-GG-005-027/AF-023, Code of Conduct for CF Personnel, p. 1-2.

3 Hague Conventions of 1907, 18 October 1907: Convention III Relative to the Opening of Hostilities, Convention IV Respecting the Laws and Customs of War on Land, Convention V Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, (VI) Relating to the Status of Enemy Merchant Ships at the Outbreak of Hostilities, (VII) Relating to the Conversion of Merchant Ships Into Warships, Convention VIII Relative to the Laying of Automatic Submarine Contact Mines, Convention IX Concerning Bombardment by Naval Forces in Time of War, Convention XI Relative to Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War, Convention XIII Concerning the Rights and Duties of Neutral Powers in Naval War and Convention XIV Prohibiting the Discharge of Projectiles and Explosives from Balloons.

4 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field of August 12, 1949, 12 August 1949, 75 U.N.T.S. 31; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed at Sea of August 12, 1949, 12 August 1949, 75 U.N.T.S. 85; Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, 12 August 1949, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, 12 August 1949, 75 U.N.T.S. 287.

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5 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol I), 6 August 1977, [AP I]; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the protection of victims of international armed conflicts (Protocol II), 6 August 1977[AP II].

6 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 18 September 1997, 2056 U.N.T.S. 211.

7 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects, 10 October 1980, 1342 U.N.T.S. 137.

Origins Writers delve back through the history of centuries to the ancient civilizations of India and Egypt to find in their writings evidence of practices intended to alleviate the sufferings of war. This evidence is to be found in agreements and treaties, in the works of religions leaders and philosophers, in regulations and articles of war issued by military leaders and in the rules of chivalry.1 It is said that the first systematic code of war was that of the Saracens and was based on the Koran.2 The writers of the Age of Enlightenment, notably Grotius3 and Vattel,4 were especially influential. It has been suggested that more humane rules were able to flourish in the period of limited wars from 1648 to 1792 but that they then came under pressure in the drift towards continental warfare, the concept of the nation in arms and the increasing destructiveness of weapons from 1792 to 1914.5

Efforts had to be made in the middle of the last century to re-impose on war limits, which up to that time had been based on custom and usage.6

References

1I. Detter, The Law of War, 2nd ed, Cambridge University Press, 2000, pp. 151-4.

2See R.C. Algase, Protection of civilians lives in warfare: a comparison between Islamic law and modern international law concerning the conduct of hostilities, Military Law and Law of War Review, 1977 at p. 246.

3 H. Grotius, De Jure Belli ac Pacis, 1642. A translation into English by F.W. Kelsey was published by Wiley & Sons in 1964.

4E. de Vattel, Le Droit des gens, 1758.

5United States, International Law, vol. II, Department of the Army, 1962, DA Pam 27-161-2.

6See further G.I.A.D. Draper, Humanitarianism in the modern law of armed conflict, in M.A. Law, 1989, at p. 3. A useful summary of the historical development of the law of armed conflict is to be found in H. McCoubrey and N.D. White, International Law and Armed Conflict, Dartmouth, 1992, pp. 209-23.

From: Green

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International Humanitarian Law

While the expression “LOAC” is primarily used in military and some academic communities, “IHL” is mostly referred to by the humanitarian organizations. Here is a definition of IHL as offered by the ICRC:

“International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare.

International humanitarian law is also known as the law of war or the law of armed conflict. International humanitarian law is part of international law, which is the body of rules governing relations between States. International law is contained in agreements between States – treaties or conventions –, in customary rules, which consist of State practise considered by them as legally binding, and in general principles.

International humanitarian law applies to armed conflicts. It does not regulate whether a State may actually use force; this is governed by an important, but distinct, part of international law set out in the United Nations Charter”.

From: ICRC Publication "What is IHL?"

CIL and Treaty Law

Definitions and Distinctions

The basic sources of the LOAC are treaties and customary international law. Treaties, which include Protocols and Conventions, are agreements concluded by states whereby they accept a legal obligation to do or not do something. One can determine whether or not a State is bound by a treaty simply by determining whether or not it has ratified the treaty. Ratification implies that the treaty has been approved by the government of the state.

Customary international law, on the other hand, is more difficult to identify. The elements of customary international law are a uniform, consistent and general repetition of similar acts by competent state authorities (usage) and recognition by states that such practice is binding upon them as law. The existence of customary international law is dependent upon general agreement, not unanimous agreement. Thus, a state may be bound by a treaty that expresses customary international law, although it is not a party to that treaty. For example, a state that is not a party to the Geneva Conventions.

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Self-Defense Under CIL and UN Charter

UN Charter, 1945

UN Siege in New York

Introduction

The right of self-defence is one of the express exemptions found in the UN Charter to the general prohibition on the use of force. This section provides an overview of the right of individual and collective self-defence and highlights some of the current key legal issues relating to its scope and ambit. The right of self-defence has been the legal basis for the deployment of the CF during the 1991 Gulf War and the current ‘Campaign Against Terrorism.’ Furthermore, the right of collective self-defence forms the legal foundation upon which the two most significant Canadian defence treaties – The North Atlantic Treaty and The NORAD Agreement, rest.1

Article 51 and its Customary International Law Counterpart

Article 51 of the UN Charter states:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

Public international law is comprised of both treaty law and customary international law. The right of individual and collective self-defence in customary international law operates and retains a ‘separate existence’2 from Article 51 and continues to “exist and apply, separately from international treaty law…”3

THE NATURE AND SCOPE OF SELF-DEFENCE

The 1990-1991 Gulf

This section will overview some of the key legal issues which currently exist in relation to the law of self-defence and which may have an impact on the decision of whether to deploy the CF and on how force is to be used if such a decision to deploy is made.

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War

Six-Days War, 1967

‘Armed Attack’

While the UN Charter recognizes the right of self-defence “when an armed attack occurs,” it does not define what is meant by an ‘armed attack.’ There is a consensus on the proposition that an armed attack includes kinetic force applied by the armed forces of a state.4

As a general statement ‘armed attack’ includes military force,5

which usually takes the form of kinetic force but may include, depending on the circumstances, activities like a computer network attack when the scale and effects of these activities have destructive consequences. International law makes a distinction between “most grave forms” (e.g., armed attacks) from “less grave forms.” In short, the “scale and effects” of a particular use of force will be assessed with some instances of force being of “lesser gravity than an armed attack.” Additionally, as the tragic events of 11 September 2001 have demonstrated armed attacks can be committed by non-state entities using non-military, unconventional or improvised means, i.e. hijacked civilian airlines.

‘Occurs’: Self-Defence, Anticipatory Self-Defence, and Pre-Emptive Self-Defence

The destruction of the “Carolina”

A right of self-defence arises when an armed attack ‘occurs.’ Legal debates have focused on whether a state can respond in self-defence only after the blow has landed, when the threat of the attack is imminent or merely a possibility.6

Generally speaking, the right of self-defence arises whenever an armed attack has occurred or when the threat of an armed attack is imminent rather than merely possible. In what is referred to as the Caroline Formula, the right of self-defence arises when there is “a necessity of self defence, instant, overwhelming, leaving no choice of means, and no moment of deliberation.”7

The nature of the threat and the means of attack will be considerations in predicting the attack and determining whether the threat is imminent. Consequently, activities taken by terrorists who do not distinguish themselves from the civilian population when preparing and carrying out an attack will be relevant. Likewise, the characteristics of a weapon system will also be considered. This would include consideration of not only the procedures involved in activating the system but its destructive capacity as well. For example, the

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nature of launching a weapon of mass destruction (WMD), when contrasted with the firing of a rifle, will be considered in the determination of imminence.8

The use of force in defence of a threat that is imminent has sometimes been referred to as anticipatory self defence. Generally speaking, states that have responded to imminent threats have characterized their actions as self-defence rather than anticipatory self defence.9 This is primarily for two reasons: first, there is no need to qualify self-defence as anticipatory given that the law of self-defence allows for action when a threat is imminent. Second, terms such as ‘anticipatory’ or ‘pre-emptive’ are used in a variety of ways and any qualification of self-defence as anticipatory will inevitably lead to unnecessary debate. Consequently, when states act in self-defence to threats that are imminent, reference is made to self defence, not anticipatory self defence.

Defence of Nationals Outside the Territory of the State

Evacuation of non combatants

Armed attacks on state property and state officials outside the territory of a victim state (e.g. warships and military members), will give rise to a right of self defence.10 With respect to private citizens it is expected that the host state will defend those nationals in situations where citizens are being attacked or threatened. Where a host nation is unwilling or unable to defend those foreign nationals, a legal right to protect nationals abroad exists. This right is viewed either as an act of self-defence or a right that exists in customary law independent from the right of self defence.11

Security Council Resolutions: Enforcement Action, Self-Defence or Both?

UN Security Council

On occasion, a situation may arise when the legal authority for self-defence exists and the Security Council then issues one or more resolutions. At this moment, the complexity of the legal framework authorizing the use of force increases. An immediate issue will be whether the Security Council has triggered the ‘until clause’ and has taken ‘measures necessary’ sufficient to extinguish the right of self defence. If not, the resolution will have to be scrutinized in order to precisely determine what, if anything, it authorizes beyond what would be permissible under the right of self defence.

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The existence of a right of self-defence coupled with Security Council resolutions addressing the same situation have arisen in a number of international operations involving the CF. These include Korea in the 1950s, the 1991 Gulf War and the ‘Campaign Against Terrorism.’ Issues such as whether troops can cross into North Korea or Iraq as an exercise of self-defence or as part of the authorization to “restore international peace and security in the area” arose. Likewise, the relationship between a mandate to “restore international peace and security” or “the maintenance of security in Kabul” is different than acting in self-defence against Al-Qaeda.12 These types of issues will have a direct impact on the OPLAN, ROE, and the targeting framework. Consequently, it will be important to identify the distinct legal bases upon which an operation may rest as well as the precise scope of operations which each legal basis may provide.

Collective Self-Defence

The legal prerequisites for the exercise of individual self-defence are equally applicable to collective self-defence – an armed attack having occurred or the imminent threat of an armed attack about to occur. Consequently, when a state is the victim of an armed attack it may ‘request’ other states to assist in its defence. NATO and NORAD are the two most relevant Canadian ‘regional arrangements’ which facilitate the collective implementation of self defence.13 On 2 October 2002, Canada and the other NATO states invoked the collective self-defence mechanism contained within Article 5 of the North Atlantic Treaty.

References

1 See generally Bowett, Self-Defence in International Law (New York: Fredrick A. Praeger, 1958); Brownlie, International Law and the Use of Force By States (Oxford: Clarendon Press, 1963); Brownlie, “The Use of Force in Self Defence” (1961) 37 BYIL 183; Alexandrov, Self-Defence Against the Use of Force in International Law (Kluwer Law International, 1996); Dinstein, War, Aggression and Self defence, 4th ed. (Cambridge: Cambridge University Press, 2006); Schachter, “Self-defence and the Rule of Law” 83 AJIL 259; Gray, International Law and the Use of Force, 2nd ed (New York: Oxford University Press, 2004); for key cases see: (1987) Case concerning United States Diplomatic and Consular Staff in Tehran (United States of America v Iran), [1980] I.C.J. Rep 3 [Tehran Hostages Case]; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), [1986] I.C.J. Rep 14 [Nicaragua Case]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion, [1996] I.C.J. Rep 66 [Legality of Nuclear Weapons]; Iranian Oil Platforms (Iran v. United States of America), [2003] ICJ Reports [Oil Platforms]; Legal consequences of the construction of a Wall in the Occupied Palestinian Territory [2004] ICJ Reports [The Wall Case].

2 Nicaragua Case, supra note 1 at 178 and 179.

3 Ibid. at 179.

4 The ICJ in the Nicaragua Case used the Definition of Aggression GAR 3314 (XXIX) 1974 [Definition] as guidance when defining ‘armed attack.’ Many examples cited in the Definition refer to classic military uses of force including bombardment, “[a]n attack by the armed forces of a state on the land” and “[t]he invasion …of the territory of another state…”

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5 In making this general statement it is recognized that some degree of controversy exists as to whether the force must pass a certain level of intensity, non kinetic military activities such as computer network attack fall within the definition, non-state entities not acting on behalf of a state can commit an armed attack, and economic or political coercion can constitute an armed attack. In the Nicaragua Case, the distinction made by the ICJ between uses of force that are ‘most grave’ and ‘less grave’ has been the source of considerable controversy. Many commentators feel that the requirements of necessity and proportionality are applicable when responding to any use of force, regardless of its scale and effects, when acting in self defence. (See Higgins, Problems and Process (Cambridge: Cambridge University Press, 1994). One writer has properly noted that

The criteria of ‘scale and effects’ …are particularly relevant in appraising what counter-action taken in self-defence, in response to an armed attack, is legitimate. .But unless the scale and effects are trifling, below the de minimis threshold, they do not contribute to a determination whether an armed attack has unfolded.. There is certainly no cause to remove small scale armed attacks from the spectrum of armed attacks (Dinstein, supra note 1 at 176).

If indeed the difference between an armed attack and ‘less grave’ uses of force is “one of degree rather than of kind” (Gray, supra note 1 at 46) then the de minimis threshold must be very low. In the Oil Platforms case, supra note 1 at 73, the Court noted that it does not exclude the possibility that the mining of a single military vessel might be sufficient to bring into play the ‘inherent right of self-defence.’ See generally Schmitt and O’Donnell, eds., “Computer Network Attack and International Law” (2002) 76 Int’l Law Studies; Schmitt, “Computer Network Attack and the Use of Force in International Law: Thoughts on a Normative Framework” (1999) 37 Col. J. Transnat’l L. 855; Barkham, “Information Warfare and International Law on the Use of Force” (2001) 34 N.Y.U.J. Int’l L. & Pol. 57. The ICJ in Nicaragua conceded, that irregulars acting on behalf of a state could commit an armed attack. This is consistent with the Definition of Aggression, which included in its definition of aggression, “[t]he sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another state….” However, a distinct legal issue arises in the case of whether a non-state entity, acting on its own, can commit an ‘armed attack.’ This situation arose from the events of 11 September 2001. In response to the attack carried out by Al-Qaeda the Security Council issued SCR 1368 (2001) and 1373 (2001), which recognized and reaffirmed the right of self defence. Implicit in this was a finding that an armed attack (a prerequisite for self defence) must have occurred. On 24 October 2001 Canada informed the Security Council that it was taking military action against Al-Qaeda as an exercise of individual and collective self defence. Clearly, from a Canadian perspective, a non-state entity can commit an armed attack and self-defence can be exercised. See Murphy, “Terrorism and the concept of “Armed Attack” in Article 51 of the U.N. Charter” (2002) 43:1 Harvard Int’l L.J. 1; Gaja, “In What Sense Was There An “Armed Attack”?” (2002) E.J.I.L. 3. In the Wall Case supra note 1, the ICJ gave an advisory opinion concerning the “legal consequences arising from the construction of the wall being built by Israel…”

In the course of addressing the question the Court noted at para. 139 that:

Article 51 of the Charter thus recognizes the existence of an inherent right of self-defence in the case of an armed attack by one State against another. However, Israel does not claim that the attacks against it are imputable to a foreign State.

The Court continues by noting that the threats, which Israel claims it is responding to in self-defence

originate within, and not outside, that territory. The situation is thus different from that contemplated by Security Council resolutions 1368 (2001) and 1373 (2001) and therefore Israel could not in any event invoke those resolutions in support of its claims to be exercising a right of

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self-defence. Consequently, the Court concludes that Article 51 of the Charter has no relevance in this case.

The ambiguity of those passages raises a number of issues. It appears to suggest that self-defence can only be exercised if a state is attacked by another state. This is problematic given post 9/11 state practice in relation to non-state actors and both SCR 1368 and SCR 1373.

6 Within this debate, various concepts such as ‘anticipatory,’ ‘pre-emptive,’ ‘preventive’ or ‘interceptive’ have been used to qualify self defence. Further confusion has developed as these adjective terms have been defined differently on various occasions. See Brownlie, supra note 1 as representative of those who do not precisely define armed attack but imply that the blow must land or trespass must occur. Bowett, supra note 1 suggests that an attack which has not yet landed but is ‘imminent’ creates a legal basis for ‘anticipatory’ self defence. Dinstein, supra note 1 is of the view that self-defence only arises when the armed attack occurs. His sophisticated analysis distinguishes between attacks, which are ‘merely foreseeable,’ ‘preventable’ or ‘conceivable’ and those attacks, which begin with an ‘irreversible course of action’ where ‘the die is cast.’ Others have held out a ‘pre-emptive’ notion of self defence. See Wedgwood, “The Fall of Saddam Hussein: Security Council Mandates and Pre-emptive Self defence” (2003) 97 A.J.I.L. 576; Sapiro, “Iraq: The Shifting Sands of pre-emptive Self defence” (2003) 97 AJIL 599; Taft and Buchwald, “Pre-emption, Iraq and International Law” (2003) 97 A.J.I.L. 557. Greenwood, “Pre-emptive Force: Afghanistan and Iraq” (2003) 4 San Diego Int’l L.J. 7-37.

7 The Caroline Formula was created during an exchange of letters between the US Secretary of State and a UK Minister, which attempted to resolve whether an attack by British forces on a ship named the Caroline, anchored in US waters with Canadian rebels on board who were preparing to attack Canada fell within an act of self defence. See Jennings, (1938) A.J.I.L. 32. The Caroline stands as authority for not only the right to use force in defence of an imminent threat but also the right to exercise self-defence against non-state entities. Within the context of using force in self-defence against Al-Qaeda – a non state entity – see Greenwood “International Law and the War Against Terrorism” (2002) 78 Int’l Affairs 2 at 301.

8 See de Chazournes and Sands, eds., International Law, the International Court of Justice and Nuclear Weapons (New York: Cambridge University Press, 1999); Gardner, “Neither Bush nor the Jurisprudes” (2003) 97 A.J.I.L. 585.

9 See Gray, supra note 1 at 139 fn 24.

10 For example, the Definition of Aggression, supra note 4, cites “[a]n attack…on the…marine and air fleets of another state.” See also the Oil Platforms decision, supra note 1 at 72, where it is stated that it does “not exclude the possibility that the mining of a single military vessel might be sufficient to bring into play the inherent right of self-defence.” Article 6 of the North Atlantic Treaty contemplates an attack on NATO military assets in the North Atlantic as an example of an armed attack.

11 See Bowett, “The Use of Force for the Protection of Nationals Abroad”, supra note 1; Gray, supra note 1 at 126-129; Alexandrov, supra note 1 at 188-213; Ronzitti, Rescuing Nationals Abroad Through Military Coercion and Intervention on Grounds of Humanity (Dordrecht, Boston, London: Martinus Nijhoff Publishers, 1985); Akehurst, ‘The Use of Force to Protect Nationals Abroad” (1977) 5 Int’l Rel. 3; Gordon, “Use of Force for the Protection of Nationals Abroad: The Entebbe Incident” (1977) 9 Case W. Res. J. Int’l L. 117; Tehran Hostages Case, supra note 1.

12 See Gray, supra note 1 at 148 and 153-154; White, Keeping the Peace (Manchester: Manchester University Press, 1997) at 52-55; Greenwood, supra note 16 and Alexandrov, supra note 1 at 252-278.

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13 See Gray, supra note 1 and Alexandrov, supra note 1. Article 52 of the UN Charter recognizes the existence of ‘regional arrangements’ as an entity that may promote international peace and security.

Introduction to Peacekeeping

Canada has a long history of involvement in peace support operations (PSO).1

Establishing a PSO is one of the options available to the international community to assist in the resolution of a conflict. They are authorized in support of the political objectives of internationally recognized organisations such as the United Nations (UN). PSOs include conflict prevention, peacemaking, traditional and complex peacekeeping, and peace building. This section identifies the legal characteristics of peacekeeping, the legal basis upon which peacekeeping operations may rest, and some of the more common contemporary legal issues that may impact on the planning and conduct of peacekeeping operations.

Peacekeeping has been defined in many operational, political and legal ways. Central to any legal definition are three legal characteristics or prerequisites: the consent of the states involved, the limitation of the use of force by peacekeepers to situations of self-defence and neutrality. Fundamentally, the traditional legal basis for peacekeeping rests on the consent of the parties to a conflict, in particular the host state, to the creation and presence of a peacekeeping force within its territory. This consent to allow a peacekeeping force to supervise a peace agreement may be facilitated by the General Assembly, the Security Council or other organs of the UN. Customary international law, based on state consent and agreement, can also support a peacekeeping operation without reliance on the UN Charter.

While many legal issues arise with reference to peacekeeping operations, some of the more significant ones center on the nature and scope of the requisite consent and the parameters of self defence. Other legal issues of operational significance relate to command and control, mandate ambiguity and the transformation of a peacekeeping operation into a peace enforcement operation.2

The Legal Characteristics of Peacekeeping

UN peacekeeping has traditionally relied on the consent of the opposing parties and involves the deployment of neutral forces to implement an agreement approved by those parties. By contrast, in cases of enforcement action, the Security Council gives Member States the authority to take ‘all necessary measures’ to achieve a stated objective. Unlike peacekeeping, consent of the parties is not necessarily required for enforcement actions.

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The Legal Basis for Peacekeeping

The UN Charter

Peacekeeping3 is not expressly provided for in the UN Charter, nor did the drafters of the UN Charter ever envisage peacekeeping. Whether based in part under the authority of the UN Charter, or solely upon customary international law, the fundamentally important legal basis upon which peacekeeping rests is the consent of the parties to a conflict and the troop contributing nations.4

Any deployment of forces within the territory of the parties to a conflict for the purposes of supervising a peace agreement without their consent must rest upon some other binding legal authority (i.e., usually a Chapter VII Security Council resolution), and consequently places the international operation outside the legal definition of peacekeeping.

Given the legal requirement of states’ and parties’ consent, it would be legally incorrect to state that the UN Charter is the legal basis that creates peacekeeping. Rather, the UN Charter provides legal authority for both the General Assembly and the Security Council to facilitate (i.e., organize, plan or finance), the creation of a peacekeeping force when the consent of the parties involved is obtained.5

The General Assembly

UN General Assembly

The General Assembly has the legal authority to consider, to discuss, and to make recommendations (but not to make decisions) “relating to the maintenance of international peace and security…”6 The General Assembly may also, subject to limitations identified below, “recommend measures for the peaceful adjustment of any situation…”7

These limits on the powers of recommendation are twofold: any recommendation “on which action is necessary shall be referred to the Security Council…” and “the General Assembly shall not make any recommendation…” regarding any dispute or situation while the Security Council is exercising its function with respect to that matter.8

Within this legal framework the General Assembly passed the Uniting For Peace Resolution,9 which became the General Assembly’s focal point, or outline, for facilitating the creation of peacekeeping forces and monitoring situations related to international peace and security. During its active period between 1945 and 1970 the General Assembly facilitated the creation of the United Nations Emergency Force (UNEF) 10 and the United Nations Operation in the Congo (ONUC).11 The utilization of its powers to finance these forces was challenged in

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a case before the International Court of Justice (ICJ), which ruled in favour of the General Assembly’s authority in relation to UNEF and ONUC.12

The Security Council’s Peacekeeping Powers

The Security Council likewise has the legal authority to issue recommendations that are non-binding but which relate to any dispute likely to endanger the maintenance of international peace and security.13 As with the powers of the General Assembly, this Security Council authority, contained within Chapter VI of the UN Charter, should be interpreted broadly, applying the doctrines of implied and inherent powers.14 Also, as is the case with the General Assembly, the legal authority to create a Chapter VI peacekeeping force is dependant on the consent of the parties.15

The Security Council could also create a peacekeeping force under Chapter VII, Article 40, with a mandate to supervise a peace agreement between two or more parties, but without authorization to “use all necessary means.” This arrangement would be consented to by the parties.16 It is important to note that in this Chapter VII peacekeeping scenario, two distinct legal bases would exist: first, state consent (customary international law), possibly expressed through a treaty (the peace agreement), and second, a binding decision of the Security Council.17 The Security Council has also authorized a peacekeeping force to supervise a peace agreement, with the consent of the parties, while giving the force Chapter VII enforcement powers for very limited purposes unrelated to monitoring the peace agreement.18

These scenarios can be legally complex and it is important to be aware of the parameters of action permitted under each legal authority. This is particularly so in cases where the CF is deployed under dual authorities (host state consent and a Chapter VII mandate) and there is the possibility of one legal base being removed, either through the withdrawal of state consent or in non-renewal of the mandate.19

The key points for the purposes of this Section are threefold. First, with state consent, the Security Council has the authority to facilitate the creation of a peacekeeping force under Chapter VI. Second, it is possible for a peacekeeping force to be created under Chapter VII, if the parties consent and force is restricted to self defence. Third, any force that is created without the consent of the parties, even if force is limited to self defence, would not fall within the legal definition of a peacekeeping force.

The Customary International Legal Basis for Peacekeeping

The fundamental legal requirement for peacekeeping is the consent of the parties. For conflicts between states this involves the consent of the states parties to the conflict and the peace agreement. For non-international armed

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conflict20, this involves the consent of the parties to the conflict. Customary international law provides a distinct and separate legal basis for peacekeeping, which is independent of the UN Charter, resting on the parties’ consent to accept a peacekeeping force.21

Contemporary Operational Law Issues

While on the surface peacekeeping appears straight forward, a number of legal issues of significance to operational planners and commanders may arise. These include issues relating to the nature and scope of consent and self defence, mixed or dual legal authorities, mandate ambiguity, and, command and control issues.

Consent

It has been noted that the key legal requirement for a peacekeeping operation is consent. The precise scope and ambit of consent may require definition. Consequently, individual contributing countries, as well as the UN, often rely upon Status of Forces Agreements (SOFAs) that define many of the above issues. The key point to emphasize is that operational planners should identify exactly what the requirements are for a particular CF mission and through policy advisors obtain the consent of the host state, by way of a SOFA, Memoranda of Understanding (MOU) or Diplomatic Note, in advance of arriving in theatre. At times this will be done in coordination with the UN.22

Self-Defence

Traditionally, peacekeeping forces have been restricted to using force in self-defence only.23 Indeed, self-defence, neutrality and consent have been the hallmarks of peacekeeping. Historically, self-defence has been viewed as being restricted to defending members of the peacekeeping forces. However, from the early 1990s onward there have been attempts to redefine ‘self defence.’ Generally speaking, these redefinitions of self-defence have usually emerged in situations where the security situation on the ground is deteriorating but the political will to alter the mandate to an enforcement operation does not exist. An example of this occurred when the CF was deployed in the Former Yugoslavia as part of UNPROFOR.24 Such an expanded self-defence concept has historically been included within UN Rules of Engagement or been expressly provided for in a Security Council resolution.25 At other times, self-defence may be expanded to include protecting local civilians from serious crimes or to defend the increasingly present humanitarian or civilian UN personnel.26 More broadly, UN peacekeeping forces at times have been authorized to simply defend the mission as a whole.

The authorization for the Canadian Forces to operate within an expanded concept of self-defence would require Government of Canada approval implemented by the Chief of Defence Staff. Such authority would be found in the

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operations order or fragmentary orders and rules of engagement.27 This issue may impact not only national rules of engagement but also the coordination of the use of force amongst the various troop contributing nations, which may very well have divergent national approaches to this issue.

Another continuing area of legal complexity is the potential for a peacekeeping operation to rely on dual or distinct legal authorities that will not be identical, but generally are overlapping and mutually reinforcing. As discussed in the preceding section, this occurs when consent is obtained and legal authority is also provided under a Chapter VII mandate. While in stable circumstances this would not trigger ongoing legal issues of operational consequence, it has the potential to do so if one of the legal bases (consent or the UN mandate) is revoked or modified. This has typically occurred through a legal and operational mandate shift from peacekeeping to enforcement actions. Some of the historic moments when these types of shifts occurred have involved the CF. For example, shifts during UNPROFOR, the United Nations Assistance Mission for Rwanda (UNAMIR) and the United Nations Operation in Somalia 2 (UNOSOM2) all involved the blurring of the line (in an operational and legal sense) between traditional understandings of peacekeeping and enforcement operations.

References 1 B-GJ-005-307/FP-030, Peace Support Operations.

2 See generally White, Keeping The Peace (Manchester: Manchester University Press, 1997); Malanczuk, ed., Akehurst’s Modern Introduction to International Law, 7th ed. (New York: Routledge, 1997) at c. 22; Simma, ed., The Charter of the United Nations: A Commentary, 2nd ed. (Oxford: Oxford University Press, 2002); Sarooshi, “The United Nations Collective Security System and the Establishment of Peace” (2001) 53 Current Legal Problems 621; Dinstein, War, Aggression and Self-Defence, 4th ed. (Cambridge: Cambridge University Press, 2006) at c. 10; Gray, International Law and the Use of Force, 2nd ed. (New York: Oxford University Press, 2004) at c. 7; Bothe & Dörschel, eds., UN Peacekeeping: A Documentary Introduction (London: Kluwer Law International, 1999); and Franck, “The United Nations as Guarantor of International Peace and Security: Past, Present and Future” in Tomuschat, ed., The United Nations at Age Fifty: A Legal Perspective (The Hague: Kluwer International Law, 1995) 25.

3 As has been stated by White, supra note 2 at 208:

To the international lawyer peacekeeping represents an intriguing puzzle, raising in particular such questions as the constitutional basis for such operations; whether nations hosting peacekeeping operations are surrendering their sovereignty; whether such forces can use force beyond that required for self defence; and which political organ of the United Nations can authorize such forces.

4 White, ibid. at 232. See also Di Blase, “The Role of the Host State’s Consent with Regard to Non-Coercive Actions by the United Nations” in Cassese, ed., United Nations Peace-keeping (The Netherlands: Sijthoff & Noordhoff International Publishers, 1978) at 55; Higgins, “A General Assessment of United Nations Peace-keeping” in Cassese, ibid. Gray, supra note 2 at 232 indicates that not only should the consent of the host state be sought, but also of the warring factions. Not so much as a legal obligation but to secure the effectiveness of the operation. See Gray, “Case Study: Host-State Consent and United Nations Peacekeeping in Yugoslavia” (1996)

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7 Duke J. Comp. & Int’l L. 241; Wippman, “Military Intervention, Regional Organizations, and Host State Consent” (1996) 7 Duke J. Comp. & Int’l L. 209.

5 According to White, ibid at 225, both the Security Council and the General Assembly have the powers to create peacekeeping forces, however politically speaking the peacekeeping function of the United Nations falls with the Security Council as it is this organ that possesses primary responsibility for the maintenance of international peace and security.

6 See the Charter of the United Nations, 26 June 1945, Can. T. S. 1945 No. 7, Article 10 and 11, online: United Nations <http://www.un.org/aboutun/charter/index.html>.

7 Ibid., art. 14.

8 Ibid., art. 11(2), 12(1). As discussed below, the two limitations have been judicially considered.

9 Uniting for Peace Resolution, GA Res. 377(V), UNGAOR, 5th Sess., Supp. No. 20, UN Doc. A/1377 (1950) 10.

10 UNEF was established by the General Assembly in 1956 in response to an invasion of Egypt by British, French and Israeli forces. It was mandated to secure the cease-fire with the co-operation of the parties to the conflict, to supervise the withdrawal of foreign troops and to patrol the armistice line. The Secretary General of the United Nations stated that UNEF had no rights other than those necessary for the execution of the functions assigned to it by the General Assembly.

11 ONUC was established in 1960 when the Secretary General of the United Nations invoked Article 99 of the UN Charter allowing him to bring to the attention of the Security Council the matter involving Belgium and the Congo. Several resolutions were subsequently passed by the Security Council but failed to give ONUC a proper mandate. The only authoritative mandate of ONUC came from the International Court of Justice in the Certain Expenses Case, infra note 12.

12 The Certain Expenses of the United Nations, Advisory Opinion, [1962] I.C.J. Rep. 151 [Certain Expenses Case].

13 Supra note 6, arts. 33 and 36(1). See White, supra note 2 at c. 2.

14 See Sarooshi, supra note 2; as well as supra note 17.

15 White, supra note 2 at 227 states:

The competence of the Security Council in the area of peacekeeping is much less controversial. Although there is no express power granted in the UN Charter allowing for the creation of Peacekeeping forces, the arguments for recognizing that the Council has power to create a Peacekeeping force are much clearer than those put forward for the Assembly. First, according to Article 24(1), …“primary responsibility….[in matters] of international peace and security.” Given that the main aim of the UN is to achieve international peace and security it is recognized that Article 24(1) confers upon the Council general powers to achieve these purposes. This is implicitly recognized in Article 24(2) which states that “the Security Council shall act in accordance with the Purposes and Principles of the United Nations.”

See also Bothe & Dörschel, supra note 2 at XV and Simma, supra note 2 at 684.

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16 See SCR 1320 (2000) on the situation between Eritrea and Ethiopia and SCR 981 (1995) on establishment of the UN Confidence Restoration Operation in Croatia (UNCRO).

17 See SCR 1270 (1999) on the situation in Sierra Leone. Peacekeeping whose presence was based on host state consent and force limited to self-defence and whose creation was based upon General Assembly resolutions (UNEF1 Egypt 1956 GA Res. 998), the same but based on SC Chapter VI powers (SCR 858 (1993) on the creation of the UNOMIG in Georgia, SCR 1320 (2001), on the situation in Ethiopia and Eritrea deploying peacekeeping personnel within UNMEE), peacekeeping again based on host state consent in Yugoslavia, SCR 743 (1992).

18 See SCRs 1547, 1585, 1588 and 1590 in relation to Sudan.

19 As threatened by Croatia in 1992 UNCRO (SCR 981) operations.

20 For a definition of international armed conflict and non-international armed conflict, see chapter 17.

21 See Gray, supra note 2 at 232. There is some debate as to whether the consent of non-state parties to the conflict is legally required. From a practical viewpoint the consent of the parties to a conflict will be required. Two examples of peacekeeping occurring based on the consent of the parties without a UN role would be the long standing Multinational Force and Observers (MFO) between Egypt and Israel in the Sinai, and the Australian-led operation in 2003 in the Solomon Islands. As stated by White, supra note 2 at 231:

A genuinely consensual peacekeeping operation undertaken by an organisation outside the UN does not require the permission of the UN before it is undertaken…Consensual, neutral peacekeeping conforms with the UN Charter and is a mechanism developed to facilitate the settlement of disputes.

22 See Bothe & Dörschel, supra note 2 at 59 for the UN Model SOFA; see also Garvey “United Nations Peacekeeping and Host State Consent” (1970) 64 A.J.I.L. 241and Di Blasé, supra note 4. For a discussion on SOFAs see Chapter 26. For examples of where the UN Model SOFA has been implemented in a SCR, see SCR 1529 dealing with Haiti in 2004 and SCR 1590 dealing with the Sudan in 2005.

23 For further reading on the use of force in self-defence see Findlay, The Use of Force in UN Peace Operations (Oxford: Oxford University Press, 2002).

24 SCR 743 (1992).

25 See Cox, “Beyond Self-Defence: United Nations Peacekeeping Operations & the Use of Force” (1999) 27 Denv. J. Int’l L. & Pol’y 239 at 250-255.

26 See SCR 1101 (1997) on the situation in Albania or SCR 1125 (1997) on the situation in the Central African Republic

27 See Cox, supra note 30. As has been noted by Annan, “Peacekeeping in Situations of Civil War” (1994) Int’l Law & Pol. 26:6 at 623:

[T]he definition of peace-keeping itself has been forced to expand with the rest of the parameters. For more than forty of forty-five years, peace-keeping was broadly understood to involve the use of multinational military personnel, armed or unarmed, under international command and the consent of the parties, to help control and resolve conflict…. In the last five years, however,

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hardly a single one of these parameters has remained untouched. The need for consent ….was overridden… [v]olatile situations in the field made it necessary to expand the definitions of both self-defence and justified use of force.

Introduction to Un Mandate Enforcement

The Security Council, unlike the General Assembly, has the legal authority to make decisions that are binding on states. This Security Council power includes the legal ability to authorize measures, up to and including the use of force against a target state or non-state actor. Consequently, the Security Council has the legal authority not only to impose non-coercive sanctions on a target state, but also to authorize the use of force in a variety of scenarios. For example, this could include authorizing force to enforce sanctions, provide a secure environment to deliver humanitarian aid, enforce the terms of a peace agreement, or restore international peace and security in a particular region. Sometimes these operations have been referred to as “complex peace support and stabilization missions” and, within the context of naval operations, “maritime interdiction operations.”

UN Enforcement vs. Peacekeeping Operations

The two key legal points distinguishing UN enforcement operations from peacekeeping1 are that in enforcement operations, states are expressly authorized to use force beyond self-defence to enforce a particular Security Council mandate and that the use of this force within, or against the ‘target’ state is not based on the specific consent of that state.2 In short, enforcement operations are coercive while peacekeeping operations are consensual.3

As noted, peacekeeping and peace enforcement are separate concepts: The two should not be confused. UN peacekeeping has traditionally relied on the consent of the opposing parties and involves the deployment of peacekeepers to implement agreements approved by those parties. In the case of enforcement action, the Security Council gives Member States the authority to take all necessary measures to achieve a stated objective. Consent of the parties is not necessarily required.4

The Legal Basis for UN Enforcement Operations

As the title of Chapter VII of the UN Charter suggests – “Action With Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression” – decisions of the Security Council pursuant to this Chapter deal with measures to restore international peace and security, including resort to the use of force in certain circumstance.

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Binding Authority

Pursuant to Article 25 of the UN Charter, “Members of the United Nations agree to accept and carry out the decisions of the Security Council.” Consequently, when the Security Council makes a decision in the form of a Security Council resolution that obliges Member States to act, or to refrain from acting, that decision is ‘binding.’5

Article 39 – The Existence of Any Threat to the Peace

Under the authority of Chapter VII, the Security Council has the legal ability to take decisions involving coercive and non-coercive measures once it makes an “Article 39 determination.”6

Article 39 states:

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Consequently, an Article 39 determination that a particular situation constitutes a threat to or breach of the peace, or an act of aggression, is the legal ‘tripwire’ or ‘trigger’ that allows the Security Council to authorize coercive action. While ‘aggression’ is a concept which is defined by law (albeit that that definition is not without controversy), there is no accepted definition of ‘threat to the peace’ or ‘breach of the peace’ and the SC enjoys a wide discretion in the application of those terms. In recent years it has treated international terrorism and situations of violence inside certain countries as constituting threats to the peace.

Article 41 – Measures Not Involving The Use of Force

Pursuant to Article 41 the Security Council is authorized to:

Decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio and other means of communication, and the severance of diplomatic relations.

Article 41 decisions, therefore, may include binding decisions for all or some Member States to impose trade restrictions or economic sanctions with respect to a particular target state or entity. It is important to note that while Article 41 is binding on all States, it expressly precludes the use of military force to ensure

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compliance with the measures adopted. Consequently, in the context of a resolution imposing economic sanctions, Member States are expected to self-regulate through import and export restrictions.

Article 42 – Measures Involving The Use of Force

By contrast, Article 42 does create a legal basis for the Security Council to authorize the use of force. Article 42 states:

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

Article 42, therefore, authorizes “action… as may be necessary to maintain or restore international peace and security.” The action may include “operations by air, sea, or land forces.” In short, Article 42 is the legal basis upon which the UN Security Council can authorize the use of force against a state or other entity.7 In this sense the force used is coercive in that it is applied without the specific consent of the target state and is not limited to self-defence.8 Rather, a level of force that is “necessary to maintain or restore international peace and security” may be authorized.

Authorizing UN Enforcement Operations

Authorizing the Use of Force

The collective security structure envisaged by the UN Charter did not fully develop. Rather than having armed forces at its disposal, pursuant to ‘Article 43 Agreements’ and commanding them through the Military Staff Committee, the Security Council has instead authorized enforcement activity by ‘coalitions of the willing’ or ‘regional agencies,’ which have retained authority for planning as well as strategic direction. The current practice is for the Security Council to authorize Member States to carry out enforcement actions against target states or entities by way of resolutions issued under the authority of Chapter VII.9

Generally, the practice of the Security Council since Resolution 661 (1990 – Gulf War) is to make an express ‘Article 39 determination’ of the existence of a threat or breach of the peace in the preamble of a resolution, usually in the penultimate paragraph.10 This is generally followed by an express statement in the last paragraph of the preamble of the resolution that the Security Council is acting under the authority of Chapter VII. In the subsequent numbered and operative paragraphs of the resolution, the Security Council calls upon all Member States, or authorizes designated states or regional agencies, to carry out a specific

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mandate or mission, often within a specified geographic area or region, against a designated state or entity. Finally, and importantly, the Security Council may additionally authorize Member States to enforce the mandate using up to and including ‘all necessary means’ or ‘all means necessary.’ It is the authorization of ‘all necessary means’ or some variation thereof, that usually provides international legal authority for the coalition or regional agency to use force beyond that required for self defence.11 Consequently, when relying upon a Chapter VII mandate to deploy the CF for the purposes of enforcing a Security Council mandate, legal advisors must study the relevant resolution(s) to determine who is authorized to do what, against whom, and with what level of force.

Historically, the CF has participated in a number of international operations that have enforced UN mandates. These included the use of naval power to enforce sanctions in the Arabian Sea and Gulf Region12 and off the Yugoslavian13 and Haitian coasts.14 CF-18s have been involved with enforcement actions over Bosnia,15 and later Kosovo,16 while other CF air assets have been involved with enforcement activities in Haiti,17 Bosnia,18 Somalia,19 East Timor,20 and Afghanistan,21 to name a few. CF land forces have conducted enforcement operations in Bosnia,22 Kosovo,23 East Timor,24 Haiti,25 Somalia26 and Afghanistan.27

Main Types of UN Enforcement Operations

While there are a variety of ways in which enforcement of a UN mandate may be authorized some of the most common types are canvassed in the following paragraphs, including enforcing sanctions, restoring international peace and security in a geographic area, implementing a peace agreement and enforcement for specific tasks.

Enforcing Sanctions

Under Article 41, which relates to “measures not involving the use of force,” the Security Council may adopt a binding resolution that requires all Member States to refrain from importing or exporting particular items (such as military equipment) from or to a target state. The creation of a sanctions regime or embargo within the context of Article 41 requires Member States to regulate their own conduct and that of their citizens. There is no authority under Article 41 itself to enforce the compliance of other Member States. However, if Member States are subsequently authorized under Article 42 to “use all necessary means” to enforce sanction compliance, they could use force, typically either through a ‘coalition of the willing’ or through a regional agency (such as NATO). The CF naval forces have been actively involved in a number of maritime interdiction operations that have been designed to ensure that all Member States comply with sanctions imposed by the Security Council. These include naval operations off the coast of Haiti,28 the former Yugoslavia 29 and Iraq.30

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Restoring International Peace and Security in a Geographic Area

The Security Council has at times authorized the use of force to “restore international peace and security in the area”31 or to “create a secure environment” in a designated geographical area, “for a humanitarian relief operation.”32

Implementing a Peace Plan or Agreement

More common is an authorization to use force to implement the military aspects of a peace plan. This type of operation is legally distinct from a peacekeeping operation in which force is limited to self-defence and the mission is typically to monitor and survey the implementation of a peace agreement by consenting parties. In this type of enforcement operation, force is authorized beyond that necessary for self-defence to ensure that relevant portions of a peace agreement identified in the resolution are implemented and completed. The creation of a peace agreement consented to by the parties, subsequently backed by a Chapter VII mandate, has occurred in the Balkans33 (the Dayton Accord), Kosovo,34 East Timor35 and Afghanistan.36 The CF has participated in all of these enforcement operations.37

Enforcement for Specific Tasks

At times a military operation will only be authorized to use force beyond that required for self-defence for precisely defined purposes, rather than through a broader mandate (such as creating a secure environment). These types of authorizations can sometimes be added to a previously mandated peacekeeping operation through Chapter VII. In such situations, the nature of the international operation begins to legally transform from a peacekeeping to a peace enforcement operation.38 Alternatively, an enforcement operation can be created initially with precisely defined parameters that clearly identify the circumstances within which “all necessary means” may be employed.39

Conclusion

UN enforcement operations or complex peace support and stabilization missions have been the most common type of international operation carried out by the CF since the end of the Cold War. These include enforcement operations involving land, sea and air assets in a variety of geographic locations including Bosnia, Cambodia, the Central African Republic, Sudan, Rwanda, East Timor, Afghanistan and Haiti to name a few.

When planning and seeking governmental authorization to deploy, CF planners, policy advisors, operators and legal advisors must pay particular attention to the authorizing Security Council resolution(s) that establish the mission mandate. Usually the mandate will define the mission goals, establish its geographic and temporal parameters, expressly authorize the level of force to be used, and

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outline command and reporting relationships. It is the authorizing Security Council resolution(s) that will form the parameters for defining the scope of operations, any strategic objectives set by the Government of Canada, the Strategic Initiating Directive, the OPLAN, ROE and possibly targeting restrictions.

It is not unusual for the scope of the mission’s mandate to be imprecisely defined. In such a case, both governmental direction and CDS direction through the Strategic Initiating Directive will give further precision. In this regard, within the context of coalition operations, it is not uncommon for various troop-contributing nations to have slightly divergent approaches to defining the mission and the nature of force to be used, given national policy and domestic legal considerations.

Additionally, an added layer of complexity may exist during the planning authorization and execution of a UN enforcement operation if the international deployment is based on more than one legal basis (e.g., a Chapter VII mandate as well as the collective right of self-defence or host state consent). In such circumstances, operations may be expanded or narrowed beyond what would otherwise be authorized in a Security Council resolution. This may impact ROE and targeting parameters, and also the way the operation is carried out, particularly if it occurs within a coalition where not all nations choose to rely on all possible legal bases.

References

1See Clemons, "No Peace to Keep: Six and Three Quarters Peacekeepers" (1993) 26 N.Y.U.J. Int'l &Pol. 107 and Fink," From Peacekeeping to Peace Enforcement: the Blurring of the Mandate for the Use of Force in Maintaining International Peace and Security" (1995) 19 Md. J. Int'l L. &Trade 1.

2Instead, state consent is expressed through that state’s prior acceptance of the provisions of the UN Charter that authorize enforcement actions by the Security Council.

3 See White, supra note 1 at 233 where he states that “What is clear is that if the consent of the government concerned is not given or is withdrawn, then the peacekeeping operation cannot remain on that State’s territory, unless the UN is prepared to change its mandate to one of enforcement”; See also Gray, supra note 1 at 232-239 for examples of the withdrawal of consent in the cases of UNEF in Egypt and UNAMIR in Rwanda effectively ending those operations; Simma, supra note 1.

4 United Nations Dept. of Public Information, A Note on the Authorization Enforcement Action of Others, online: United Nations <http://www.un.org/Depts/dpko/dpko/intro/enforce.htm>.

5 See United Nations Charter, Article 103:

In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

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See also ICJ 27 Feb 1998, Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial instance at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom; Judgement of the Court of First Instance (Second Chamber, Extended Composition) 21 Sept 2005, Yassin Abdullah Kadi v. Council of the European Union and Commission of the European Communities.

6 See Abbott, “The United Nations and Intrastate Conflict: A Legislative History of Article 39 of the United Nations Charter” (2002) 8 U.C. Davis J. Int’l L. & Pol. 275.

7 In order for the Security Council to rely on Article 42 it must be of the opinion that the measures provided for in Article 41 would be inadequate or that they have already proved to be inadequate. It is not necessary that Article 41 measures have actually been ordered and implemented and proven ineffective, but rather only that, in the opinion of the Security Council, any measures implemented under Article 41 would be ineffective if implemented. See Frowein and Krisch, “Article 42” in Simma, supra note 1 at 753.

8 Measures taken against a state pursuant to Article 42 constitute enforcement measures against a state and as a sanction it must, by definition, be carried out against the will of the state concerned. Once a state is in agreement with the stationing of military forces in its territory the measures no longer constitute a sanction and the deployment of troops into the territory of the state may no longer be justified under Article 42. See Frowein and Krisch, “Article 42” in Simma, ibid at 753.

9 The legal framework in which the Security Council authorizes enforcement actions is discussed in chapter 15.

10 However, there are exceptions. See, for example, SCR 1160 (1998).

11 See e.g.: SCR 940 (1994) concerning Haiti; SCR 776 (1992) concerning Bosnia; SCR 814 (1993) concerning Somalia; SCR 1031 (1996) concerning Bosnia; SCR 1244 (2000) concerning Kosovo and SCR 1386 (2001) concerning Afghanistan.

12 See SCR 665 (1990).

13 See SCRs 787 (1992) and 820 (1993).

14 See SCRs 815 (1993), 875 (1993) and 917 (1994).

15 See SCR 1088 (1996).

16 See SCR 1244 (1999).

17 See SCR 940 (1994) and 1524 (2004).

18 See SCR 1357 (2001).

19 See SCR 794 (1992) and 814 (1992).

20 See SCR 1264 (1999).

21 See SCR 1386 (2001).

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22 See SCR 1088 (1996).

23 See SCR 1244 (1999).

24 See SCR 1264 (1999).

25 See SCR 1524 (2004).

26 See SCR 814 (1999).

27 See SCRs 1386 (2001) and 1563 (2004).

28 On the law of maritime sanctions enforcement or maritime interdiction operations, see generally McLaughlin, "United Nations mandated Naval Interdiction Operations in the Territorial Sea" (2002) 51 I.C.L.Q. 249; See SCRs 815 (1993), 875 (1993) and 917 (1994)

29See SCRs 787 (1992) and 820 (1993).

30 See SCRs 661 (1990), 665 (1991), 1483 (2003), 1546 (2004).

31 See SCR 83 (1950) in the case of Korea and SCR 678 (1990) in the case of Iraq’s annexation of Kuwait. Both these resolutions have been the subject of debate over whether they simply reaffirm the right of self-defence or go beyond that and authorize the use of force in ways that would not be possible if a State was simply acting in collective self defence. See Gray, supra note 1 at 135.

32 See SCR 794 (1992) concerning the situation in Somalia.

33 See SCR 1088 (1996).

34 See SCR 1244 (1999).

35 See SCR 1264 (1999).

36 See SCR 1386 (2001).

37 For further information on the implementation of peace in the former Yugoslavia see Galbraith, “Washington, Erdut and Dayton: Negotiating and Implementing Peace in Croatia and Bosnia-Herzegovina” (1997) 30 Cornell Int’l L.J. 643; Ashton, “Making Peace Agreements Work: United Nations Experience in the Former Yugoslavia” (1997) 30 Cornell Int’l L.J. 769; Cousens, “Making Peace in Bosnia Work” (1997) 30 Cornell Int’l L.J. 789.

38 See UNPROFOR SCR 770 (1992), 776 (1992), 779 (1992), Albania SCR 1101 (1997); UNMIH SCR 940 (1994) (Haiti); SCR 1590 (2005).

39 See SCR 814 (1993) (Somalia), SCR 1590 (2005) (Sudan).

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Humanitarian Intervention The UN Charter provides a legal basis allowing the Security Council to authorize military intervention for humanitarian purposes. For example, the CF deployed to Somalia, Haiti and East Timor in the early 1990s for what has been generally viewed as Security Council authorized humanitarian intervention.1

This section, however, focuses on humanitarian intervention that is not authorized by the Security Council and which instead relies upon customary international law as its legal basis.

The issue of whether a customary international right of humanitarian intervention exists surfaced during the 1999 Kosovo air campaign in which the CF and other NATO militaries halted acts of genocide and crimes against humanity being inflicted by the Milosevic regime. Largely as a result of this intervention, the existence of a right of humanitarian intervention has been one of the most debated international legal issues over the last five years.2

Those who argue that no such right currently exists generally anchor their position on the UN Charter. In particular they rely on Article 2(4),3 which creates a general prohibition on the use of force subject only to the exceptions of self-defence (Article 51) and Security Council authorization (Chapter VII). Those with a restrictive view of the issue generally argue that in the absence of express authorization by the Security Council to use force, a legal basis for humanitarian intervention does not exist. Only those interventions for humanitarian purposes that have been authorized by a Security Council resolution, such as Somalia or East Timor, would be lawful.4

Importantly, most legal experts in this group acknowledge that international law is dynamic and subject to change. The UN Charter can be reinterpreted over time as a result of state practice, through the development of customary international law. For members of this group, an international right to use military force for humanitarian purposes has not yet crystallized, but they acknowledge that there is a possibility that the law can evolve and may already be developing in this area.5

The key argument for those rejecting a customary right of humanitarian intervention is that there is currently not sufficient evidence of state practice based upon opinio juris – a belief that the action is in accordance with international law – to support the argument that a right to use military force to address serious violations of human rights exists, in the absence of Security Council authorization.

Other lawyers in this group, including the former President of the International Criminal Tribunal for the Former Yugoslavia (ICTY), have argued that customary international law could provide a legal basis to intervene militarily for limited

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humanitarian purposes and, indeed, that international law is moving in this direction. For example, following an overview of historic state practice relating to international human rights, it was concluded that:

based on these nascent trends in the world community, I submit that under certain strict conditions resort to armed force may gradually become justified, even absent any authorization by the Security Council.6

The evolution of international practice based on the UN Charter and customary international law is driven increasingly by an acceptance of the need for effective protection of human rights and a diminishing of the influence of traditional Westphalian respect for the sovereignty of the state. It is the engine of human rights that has propelled the emergence of a doctrine of humanitarian intervention and a continual redefinition of both “the domestic jurisdiction” under Article 2(7)7 and a “threat to international peace and security” under Article 398 of the UN Charter. Increasingly, serious violations of human rights within the territory of a state that it is unable or unwilling to prevent are being met by military and non-military forms of intervention.

Importantly, largely as a result of this evolution, there is also a body of legal opinion asserting that an international legal right of humanitarian intervention already exists.9 For proponents of such a right, the UN Charter is a ‘living tree’ subject to changing interpretations as customary norms develop. In short, the UN Charter is not a static legal document, nor is it the sole source of international law. A leading proponent of the existence of a right of humanitarian intervention has observed the following:

It has been argued that, because the United Nations Charter contains a prohibition of the use of force and no express exception for humanitarian intervention, there can be no question of international law recognizing a right of humanitarian intervention. That is, however, to take too rigid a view of international law.

This approach ignores the fact that international law in general and the United Nations Charter in particular do not rest exclusively on the principles of non-intervention and respect for the sovereignty of the State. The values on which the international legal system rests also include respect for human rights… Upholding those rights is one of the purposes of the United Nations and of international law… Moreover, international law is not confined to treaty texts. It includes customary international law. That law is not static but develops through a process of State practice, of actions and the reaction to those actions. Since 1945, that process has seen a growing importance attached to the preservation of human rights. Where the threat to human rights has been of an extreme character, States have been prepared to assert a right of humanitarian intervention as a matter of last resort.10

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Those who advocate the existence of a customary international law basis for humanitarian intervention cite a long history of state practice as evidence supporting the crystallization of a legal right. This includes various historic moments where military intervention into another sovereign state’s territory has occurred without prior Security Council authorization, in situations of humanitarian crisis. Commonly advanced examples include the 1971 Indian intervention into Pakistan, Vietnam’s 1978 intervention into Pol Pot’s Cambodia, Tanzania’s invasion of Uganda (also in 1978), ECOWAS’s interventions into Liberia (in 1990), and Sierra Leone (in 1997), the imposition of ‘no-fly zones’ in northern and southern Iraq, in 1991 and 1992, respectively, and of course, Kosovo.

By way of summary, the current debate on whether a right of humanitarian intervention exists focuses on the central point of whether the weight of evidence is sufficient to conclude that such a right has crystallized. Most lawyers in the debate, on either side, acknowledge that customary international law and interpretations of the UN Charter can evolve and support the emergence of a right of humanitarian intervention.

The Canadian approach to the issue of humanitarian intervention has resulted in some key moments of state practice. As noted, Canada deployed the CF and participated in the NATO-led Kosovo air campaign in 1999.11 Furthermore, the Government of Canada is playing a leading role in developing clear and precise rules under which states can and should intervene militarily for humanitarian purposes.12 In 2000, the Government of Canada announced before the UN General Assembly that it would establish the International Commission on Intervention and State Sovereignty (ICISS) to address issues relating to the responsibility of states when confronted with humanitarian crises. The ICISS produced a report entitled the Responsibility to Protect13 which offers a framework defining when and how military forces may be deployed into another state to address humanitarian catastrophes. The notion of a “Responsibility to Protect” has been advanced by Canada at the UN. During the UN Summit in September 2005, world leaders endorsed the principle that States have a primary responsibility to protect their own populations and that the international community has a responsibility to act when these governments fail in that duty.14 While this document, like the Report, do not provide a legal basis for humanitarian intervention, they are evidence of opinio juris.

References

1 Greenwood, “International Law and the NATO Intervention in Kosovo” (2000) 49 I.L.C.Q. 927.

2 For a general review of the various perspectives within the legal debate, useful references include: “Kosovo: House of Commons Foreign Affairs Committee 4th Report, June 2000” (2000) 49 I.C.L.Q. 876; “Editorial Comments: NATO’s Kosovo Intervention – Kosovo and the Law of “Humanitarian Intervention” (1999) 93 A.J.I.L. 824; Greenwood, ibid.; Chesterman, Just War of

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Just Peace: Humanitarian Intervention and International Law (Oxford: Oxford University Press, 2001). Pitzul et al., “The Responsibility to Protect: A Military Legal Comment” (2005) 5:4 Can. Mil. J. 31. The following analysis concerning the debate has been extracted from this article. Other useful readings include: Wheeler, Saving Strangers: Humanitarian Intervention in International Society (New York: Oxford University Press, 2000); Franck, Recourse to Force: State Action Against Threats and Armed Attacks (Cambridge: Cambridge University Press, 2002), ch. 9; Henkin, “NATO’s Kosovo Intervention: Kosovo and the Law of Humanitarian Intervention” (1999) 93 A.J.I.L. 824.

3 Article 2(4) of the UN Charter states: “All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

4 Relevant Security Council resolutions are: Somalia, SCR 794 (1992) and East Timor, SCR 1246 (1999), SCR 1264 (1999) and SCR 1272 (1999).

5 See e.g. Cassese, “A Follow-up: Forcible Humanitarian Countermeasures and Opinio Necessitatis” (1999) 10 E.J.I.L. 791. As Brownlie noted before the United Kingdom House of Commons Foreign Affairs Committee following the Kosovo air campaign: “[t]he proponents of humanitarian intervention are distinctly in a minority. More significant, however, is the position in customary international law, which depends upon the practice of States based upon opinio juris, that is to say a belief that the action is in accordance with international law. … But there is a burden of proof upon proponents of a change in the customary law. The central point is the absence of evidence of a change of view by a majority of States.” Brownlie, “Kosovo Crisis Inquiry: Memorandum on the International Law Aspects” (2000) 49 I.C.L.Q. 894.

6 Cassese, “Ex incuria ius oritur: Are We Moving Towards International Legitimization of Forcible Humanitarian Countermeasures in the World Community?” (2000) 10 E.J.I.L. 27.

7 Article 2(7) provides in part that “nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state,” subject only to enforcement measures adopted by the Security Council pursuant to its Chapter VII authority.”

8 Article 39 reads, in part: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall … decide what measures shall be taken in accordance with Articles 41 and 42 ….” As noted in Chapter 7, Section 4 the interpretation, which states have given to Article 2(7) and Article 39 has transformed over time. The developments, driven largely by a concern for human rights, have been to give an expansive view of what constitutes a “threat to the peace” and a narrower view of what constitutes “within the domestic jurisdiction of any state.”

9 See especially Greenwood, supra note 1. See also the pleadings of Belgium before the International Court of Justice in Legality of Use of Force (Belgium v. Serbia and Montenegro), (Provisional Measures), 10 May 1999, CR 99/15.

10 Greenwood, ibid. at 929.

11 Prior to the commencement of the air campaign the Security Council had passed resolutions SCR 1160 (1998), SCR 1199 (1998) and SCR 1203 (1998), all which determined the situation in Kosovo to be a threat to international peace and security but did not expressly authorize the use of force. During the campaign a Russian sponsored draft resolution condemning the air campaign did not pass. In 1999 the Former Republic of Yugoslavia (FRY) commenced legal action against Canada and 9 other NATO states before the. On 15 Dec 2004 the ICJ ruled that Serbia and

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Montenegro (formerly the FRY) could not proceed with the matter on the basis of jurisdiction issues. See the ICJ decision of Legality of Use of Force (Canada v. Serbia and Montenegro), [2004] I.C.J., online: ICJ <http://www.icj-cij.org/icjwww/ipresscom/ipress2004/ipresscom2004-04_yca_summary_20041215.htm>.

12 See for example, International Commission in Intervention and State Security (ICISS), Responsibility to Protect Document – Report of the International Commission on Intervention and State Sovereignty, December 2001, online: ICISS <http://www.iciss.ca/report2-en.asp> [ICISS Report]. The report notes that “[t]he starting point…should be the principle of non-intervention…Yet there are exceptional circumstances in which the very interest that all states have in maintaining a stable international order requires them to react when all order within a state has broken down or when civil conflict and repression are so violent that civilians are threatened with massacre, genocide or ethnic cleansing on a large scale…Generally expressed, the view was that these exceptional circumstances must be cases of violence which so genuinely “shock the conscience of mankind,” or which present such a clear and present danger to international security, that they require coercive military intervention.”

13 ICISS Report, supra note 12. Both former Prime Ministers Jean Chrétien and Prime Minister Paul Martin have advanced the ideas contained in the ICISS Report. See, for example, Prime Minister Chrétien’s speeches at the opening of the 58th Session of the UN General Assembly, 23 September 2003, and during his Roundtable Discussion at the Progressive Governance Summit, hosted by the United Kingdom Prime Minister Blair in London on 12 July 2002. More recently, Prime Minister Martin promoted the ICISS Report during the 3 February 2004 and also the 5 October 2004 Throne Speeches, in the “Address by the Prime Minister in Reply to the Speech from the Throne.” In addition, on 22 September 2004, at the opening of the 59th Session of the UN General Assembly, Prime Minister Martin stated: “International law is moving in the right direction…Thus, customary international law is evolving to provide a solid basis in the building of a normative framework for collective humanitarian intervention. To speed it along, member states should now adopt a General Assembly resolution recognizing the evolution of sovereignty to encompass the international responsibility to people.” See also paras. 138-140 of the subsequent Resolution adopted by the General Assembly, 60/1. 2005 World Summit Outcome, 24 October 2005, online: United Nations <www.un.org/summit2005/> [World Summit Outcome].

14 World Summit Outcome, ibid. at paras. 138-140.

When Does the Law of Armed Conflict Apply?

Also as a general statement, the LOAC1 applies to the conduct of CF international operations whenever Canada is a party to an armed conflict or in belligerent occupation of foreign territory.2

International law recognizes two types of armed conflict: international armed conflict and non-international armed conflict3 (sometimes referred to as internal armed conflict or armed conflict not of an international nature).4

Generally speaking international armed conflict has been defined as the “resort to armed force between States,” while non-international armed conflict has been defined as “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.”5

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The Application of the LOAC Generally As noted, LOAC applies whenever there is a state of “armed conflict.” A widely accepted decision of the International Criminal Tribunal for the Former Yugoslavia (ICTY) has stated:

International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment, international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal armed conflicts, the whole territory under the control of a party, whether or not actual combat takes place there.6

LOAC Application as a Matter of Law

Treaty Law

The LOAC is composed of both treaty law and customary international law. The key treaties expressly establish whether they apply to international or to non-international armed conflict, or to both. Most treaties, including the Geneva Conventions and Additional Protocol I (AP I) apply (as a matter of treaty law) only to international armed conflicts between states party to them. In some cases treaties may expressly apply to non-international armed conflict. For example this would include Additional Protocol II (AP II). The Rome Statute7 as well as the Amended Protocol II of the Convention on Certain Conventional Weapons apply to both types of armed conflict.

The Geneva Conventions and AP I apply to “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them”8 or in “all cases of partial or total occupation of the territory of a High Contracting Party…”9 AP I also covers situations in “which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination…”10

Treaties on the LOAC are normally applicable only in conflicts between states party to them.11 It is possible, however, for the Geneva Conventions and AP I to apply in times of armed conflict between a High Contracting Party and a party to the conflict, which is not a High Contracting Party in certain circumstances. AP I12 and the Geneva Conventions allow a “non-High Contracting Party” to be bound by their terms if the non-High Contracting Party “accepts and applies the provisions thereof.”13

The Geneva Conventions and AP I do not apply (as a matter of treaty law) to situations of non-international armed conflict, or, in the words of the Geneva

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Conventions, “armed conflict not of an international character,"14 with the exception of Common Article 3 of the Geneva Conventions.

Armed conflicts “not of an international character” are governed by Common Article 3 of the Geneva Conventions and in certain circumstances, AP II. The threshold for application of the two instruments is different. Common Article 3 applies to any conflict not of an international character whether it is between government and rebel forces or different rebel factions. There is no requirement that the violence reach a particular level of intensity, although the statement in AP II Article 1(2) that “situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature” are not armed conflicts reflects customary law and is probably applicable to common Article 3 as well. By contrast, AP II applies only to armed conflicts which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.15

Based upon the above discussion, it is apparent that caution must be used when determining whether a particular LOAC treaty applies, as a matter of treaty law, to a particular CF international operation. As a threshold issue, the legal advisor must first determine whether Canada is a party to an “armed conflict.” If so, the nature of the armed conflict – international or non-international – must be determined. Then, an assessment must be made as to whether the nature of the armed conflict falls within a particular treaty’s scope of application. Subsequently, it must then be determined whether Canada has ratified that treaty. Lastly, the analysis must be made as to whether or not the opposing party to the armed conflict is a High Contracting Party or otherwise agrees to accept and apply the provisions of the treaty.16 The CF Publication B-GG-005-027/AF-022, Collection of the Documents on the Law of Armed Conflict, 17 is a valuable tool in identifying which treaties Canada has ratified.

Customary International Law of Armed Conflict

The scope of LOAC application is far broader under customary international law18

than it is under treaty law. This is for two reasons. First, treaties apply only to states that are parties to the treaties (often referred to as High Contracting Parties in the LOAC context) and only between such states. In contrast, the customary international LOAC applies to all states that are parties to the armed conflict in question. This is because, customary international law is binding on all states in addition to their individual treaty obligations. Second, while the applicability of the various LOAC treaties is defined by the terms of the treaties themselves, it has generally been held that much of the content of these treaties reflects customary international law and in turn, that this customary LOAC is often applicable to both international and non-international armed conflict.19

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The combined effect of these two developments is that customary international LOAC obligations of parties to armed conflict, particularly non-international conflicts, are often more comprehensive and restrictive than their treaty law obligations.

In Tadic, the ICTY addressed the issue of what body of LOAC was included within the term “violations of the laws or customs of war.” A key issue involved identifying the customary rules of IHL governing non-international armed conflicts. Following a lengthy analysis the Court noted:20

The emergence of the aforementioned general rules on internal armed conflicts does not imply that internal strife is regulated by general international law in all its aspects. Two particular limitations may be noted: (i) only a number of rules and principles governing international armed conflicts have gradually been extended to apply to internal conflicts; and (ii) this extension has not taken place in the form of a full and mechanical transplant of those rules to internal conflicts; rather, the general essence of those rules, and not the detailed regulation they may contain, has become applicable to internal conflicts.

…

Notwithstanding these limitations, it cannot be denied that customary rules have developed to govern internal strife. These rules, as specifically identified in the preceding discussion, cover such areas as protection of civilians from hostilities, in particular from indiscriminate attacks, protection of civilian objects, in particular cultural property, protection of all those who do not (or no longer) take active part in hostilities, as well as prohibition of means of warfare proscribed in international armed conflicts and ban of certain methods of conducting hostilities.

…

Applying the foregoing criteria to the violations at issue here, we have no doubt that they entail individual criminal responsibility, regardless of whether they are committed in internal or international armed conflicts. Principles and rules of humanitarian law reflect “elementary considerations of humanity” widely recognized as the mandatory minimum for conduct in armed conflicts of any kind. No one can doubt the gravity of the acts at issue, nor the interest of the international community in their prohibition.

While it is important to note that much of the treaty law of LOAC may also reflect customary international law, which, in turn, may be applicable equally to both international and-non international armed conflicts, operational commanders and legal advisors must not take a general approach and act as if all LOAC is equally applicable to all types of conflict in all circumstances. This is particularly so in the

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area relating to targeting, combatancy, detainee and prisoner of war status, where significant differences between these legal regimes remain. The determination of whether a particular rule is legally applicable should be made with the assistance of legal advice. The ICRC has recently completed a report identifying what it feels constitutes customary IHL. While this report has not, and may not in the future, be adopted by the Government of Canada as a definitive statement of customary law binding upon states, the study is an important research tool contributing to our understanding of LOAC.21

LOAC Application as a Matter of Policy

Independent of the legal issue of what body of LOAC applies, both the CDS (on behalf of the CF), as well as the Secretary-General of the UN, have issued separate policy statements on when forces operating under their respective authority will apply the LOAC during the conduct of their military operations.

The Canadian Forces

National Defense Headquarters

The Code of Conduct for CF Personnel, issued under the authority of the CDS, states:

The Law of Armed Conflict applies when Canada is a party to any armed conflict. During peace support operations the spirit and principles of the Law of Armed Conflict apply. The CF will apply, as a minimum, the spirit and principles of the Law of Armed Conflict in all Canadian military operations other than Canadian domestic operations.22

This is an important direction to the operational commander and CF members responsible for the planning and conduct of operations. Its effect is that CF members are to conduct international military operations applying the spirit and principles of LOAC as a minimum, regardless of whether it applies as a matter of law.

The United Nations Policy

In 1999, the UN Secretary-General issued the “Bulletin On The Observance By United Nations Forces of International Humanitarian Law” (Bulletin).23The Bulletin is applicable to “United Nations forces conducting operations under United Nations command and control.” Consequently, as a general statement, the Bulletin would most commonly apply to traditional peacekeeping rather than coalition operations enforcing a Chapter VII mandate. To the extent that the Bulletin applies to a particular operation:

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UN Headquarters

The fundamental principles and rules of international humanitarian law set out in the present bulletin are applicable to United Nations forces when in situations of armed conflict they are actively engaged therein as combatants, to the extent and for the duration of their engagement. They are accordingly applicable in enforcement operations, or in peacekeeping operations when the use of force is permitted in self-defence.24

References

See especially Greenwood, supra note 1. See also the pleadings of Belgium before the International Court of Justice in Legality of Use of Force (Belgium v. Serbia and Montenegro), (Provisional Measures), 10 May 1999, CR 99/15.

2 There has been, however, some debate concerning whether the recent campaign against terrorism in Afghanistan constitutes a continuing armed conflict, and whether the armed conflict is of an international or a non-international character. See e.g. Jinks, “September 11 and the Laws of War” (2003) 28 Yale J. Int’l L. 1; Fitzpatrick, “Jurisdiction of Military Commissions and the Ambiguous War on Terrorism” (2002) 96 A.J.I.L. 345.

3 On non-international armed conflicts see Moir, “The Implementation and Enforcement of the Laws of Non-International Armed Conflict” (1998) 3 J. Armed Confl. 163; Moir and Matheson, “The Law of Internal Armed Conflict” (2003) 97 A.J.I.L. 466; Blank, “The Laws of War in Shakespeare: International vs. Internal Armed Conflict” (1998) 30 NYU Jn. Int’l Law & Policy 251; Lopez, “Uncivil Wars: The Challenge of Applying International Humanitarian Law to Internal Armed Conflicts” (1994) 69 N.Y.U.L. Rev. 916; Cullen, “The Parameters of Internal Armed Conflict in International Humanitarian Law” (2004) 12 U. Miami Int’l & Comp. L. Rev. 189; Junod, “Additional Protocol II: History and Scope” (1983) 33 Am. U. L. Rev. 29.

4 For a general discussion on the applicability of the LOAC and the categorization of “armed conflict” see: Prosecutor v. Dusko Tadic (1995), C- IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, at para. 70 [Tadic]; Meron, “The Humanization of Humanitarian Law” (2000) 94 A.J.I.L. 239; Greenwood, supra note 9; Mullerson, supra note 9; Greenwood, “The Scope of Application of Humanitarian Law” in Fleck, supra note 1 at 39.

5 Tadic, ibid. at para. 70.

6 Tadic, supra, note 13.

7 Rome Statute of the International Criminal Court, 17 July 1997 2002 C.T.S. 13.

8 This has always been interpreted as applying to any armed conflict even if the state of war has not been recognized by any of the parties – see Greenwood, “The Concept of War in International Law” 36 I.C.L.Q. 283.

9 See Common Article 2 of the Geneva Conventions, as well as Article 1(3) of AP I which adopts Common Article 2 in its definition of jurisdiction. “High Contracting Party” refers to a state that has ratified the Geneva Convention and/or the Additional Protocol.

10 AP I, supra note 5, art. 1(4).

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11 Afghanistan is an example of a conflict where Canada is not bound by AP I because the rival belligerent is not a party.

12 AP I, supra note 5, art. 96(2).

13 See Common Article 2 to the Geneva Conventions of 1949.

14 See Common Article 3 to the Geneva Conventions of 1949.

15 See APII, supra note 5, arts. 1(1), 1(2); Tadic, supra note 13 at para 70.

16 Reciprocity is a legal issue affecting the application of certain treaties as a matter of treaty law. However, some basic legal principles apply to military operations during armed conflict regardless of their acceptance in practice by opposing belligerent forces. See e.g., Common Article 3 of the Geneva Conventions.

17 See also Roberts and Guelff, ed., Documents on the Laws of War, 2nd ed. (Oxford: Oxford University Press, 1989) as a useful reference book listing that have ratified the key LOAC treaties.

18 For further reading on the application of customary international law in the law of armed conflict see Greenwood, supra note 9; Humanitarian Law of Armed Conflict : Challenges Ahead : Essays in Honour of Frits Kalshoven (Dordrecht: Martinus Nijhoff, 1991) 93; Meron, “The Geneva Conventions as Customary Law” (1987) 81 A.J.I.L. 348; Greenwood, “Customary International Law and the First Geneva Protocol of 1977 in the Gulf Conflict” in Rowe, ed., The Gulf War 1990-91 in International and English Law (London: Sweet and Maxwell, 1993) 63; Meron, “The Continuing Role of Custom in the Formation of International Humanitarian Law” (1996) 90 A.J.I.L. 238; Meron, “The Geneva Conventions as Customary Law” (1987) 81 A.J.I.L. 348; Kontou, The Termination and Revision of Treaties in the Light of New Customary International Law (Oxford: Oxford University Press, 1995); Villiger, Customary International Law and Treaties (Dordrecht: M. Nijhoff, 1986).

19 See generally Tadic, supra note 13 at paras. 79 to 141. See also, Henckaerts and Doswald-Beck, eds., Customary International Humanitarian Law (Cambridge: Cambridge University Press, 2005) as a general reference tool to guide the determination of whether a rule may be customary.

20 Tadic, supra note 13 at paras. 126, 127, 129.

21 Henckaerts and Doswald-Beck, eds., supra note 30.

22 B-GG-005-027/AF-023, p.1-1, para. 2 and p.1-2, para 10; see also B-GG-005-027/AF-021, Law of Armed Conflict at the Operational and Tactical Level, p. 1, paras. 1 and 7; and B-GG-005-004/AF-005, Use of Force in CF Operations (Revision one), p. 1/14 - 3/14, para. 4.

23 Bulletin On The Observance By United Nations Forces of International Humanitarian Law, 38 I.LM. 1656 (1999).

24 Ibid., s.1.

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Introduction

The LOAC is traditionally divided into two components or streams, The Law of The Hague and the Law of Geneva, each named after the city where most of the relevant agreements were devised. The Law of The Hague is concerned essentially with the actual conduct of military operations including the methods and means of combat. The law of Geneva on the other hand is concerned with the protection of persons not involved in a conflict such as civilians, PWs and the sick and wounded. Following the adoption in 1977 of the Additional Protocols I and II to the Geneva Conventions, there has been a tendency for the two components to merge as the Additional Protocols deal with the conduct of hostilities as well as the protection of the victims of armed conflict.

Primary Concepts

Three primary concepts underlie the LOAC: military necessity, humanity and chivalry.

Military Necessity

Military necessity is related to the primary aim of armed conflict - the complete submission of the enemy at the earliest possible moment with the least possible expenditure of personnel and resources. The concept of military necessity justifies the application of force not forbidden by International Law, to the extent necessary, for the realization of the purpose of armed conflict.

The concept of military necessity presupposes:

a. the force used can be and is being controlled;

b. the use of force is necessary to achieve the submission of the enemy; and

c. the amount of force used is limited to what is needed to achieve prompt submission.

Military necessity is not a concept that can be considered in isolation. In particular, it does not justify violation of the LOAC, as military necessity was a factor taken into account when the rules governing the conduct of hostilities were drafted.

For example, military necessity is not the 19th Century German Doctrine of Kriegsraison which asserted that war could justify any measures - even in violation of the laws of war - when the necessities of any particular situation purportedly justified it. War crimes trials after World War II clearly rejected this view. Military necessity cannot justify actions absolutely prohibited by law, as the

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means to achieve military victory are not unlimited. Armed conflict must be carried on within the limits set by International Law.

Humanity

Related to the concept of necessity and implicitly contained within it is the concept of humanity which forbids the infliction of suffering, injury or destruction not actually necessary for the accomplishment of legitimate military purposes. This concept of humanity results in a specific prohibition against unnecessary suffering, a requirement of proportionality, and a variety of more specific rules. The concept of humanity also confirms the basic immunity of civilian populations and civilians from being objects of attack during armed conflict. This immunity of the civilian population does not preclude unavoidable incidental civilian casualties that may occur during the course of attacks against legitimate targets and that are not excessive in relation to the concrete and direct military advantage anticipated.

Chivalry

The concept of chivalry is difficult to define. It refers to the conduct of armed conflict in accordance with certain recognized formalities and courtesies. An armed conflict is rarely a polite contest. Nevertheless, the concept of chivalry is reflected in specific prohibitions such as those against dishonourable or treacherous conduct and against misuse of enemy flags or flags of truce. The concept of chivalry makes armed conflict slightly less savage and more civilized for the individual combatant.

Fundamental Principles

Humanitarian Principle

Military necessity must always be compatible with respect for the human person. Even in an armed conflict, there are certain basic human rights that must be respected.

Principle of the Law of Geneva

Persons rendered hors de combat (out of combat) and those not directly participating in hostilities shall be respected, protected and treated humanely. This principle specifies three duties towards the victims of war: to respect them, protect them and treat them humanely. These three requirements constitute a harmonious whole. To understand what they imply requires only common sense and good faith. It is the minimum treatment, which must be accorded to allow the individual to lead an acceptable existence.

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Principle of the Law of War (or Law of the Hague)

This principle is the corollary to the Martens Clause . It states that the right of the parties to a conflict to choose the methods and means of warfare is not unlimited. This is directly related to the concept of military necessity, which implies that combatants shall not inflict harm on their adversaries out of proportion with the object of armed conflict, which is the prompt submission of the enemy. Any use of military force that is not essential to this purpose is superfluous. For example, any use of unlawful weapons is prohibited.

HlVR Arts 22 & 23 (e)

Operational Principles

Distinction

The principle of distinction imposes an obligation on commanders to distinguish between legitimate targets and civilian objects and the civilian population. It is of primary importance when selecting targets.

HIVR Arts 25 & 27 (1); HIX Arts 1 (1) & 5 (1); GIV Art 53; AP l Arts 48, 51, 52 & 57

This obligation is, of course, dependent on the quality of the information available to commanders at the time decisions are made. Commanders must make reasonable, good faith efforts to gather intelligence and to review the intelligence available to them.

Reservation made by Canada at the time of ratification of AP I relative to Arts 48, 51-60 inclusive, 62 & 67

Non-Discrimination

The principle of non-discrimination must be considered in two aspects. First, the LOAC binds both sides in a conflict. Although one side may label the other an aggressor, it is not entitled to apply the law in a different way because of that assertion. Second, the LOAC is to be applied without any adverse distinction founded on race, colour, religion or faith, gender, birth or wealth, or any other similar criteria. The fact that the enemy is of a different colour or a different religion does not allow the other party to apply the law in a different fashion.

GC Common Arts 2 & 3; GIV Art 13; AP l Arts 9 (1) & 10 (2); AP II Arts 2 (1) & 7 (2)

Proportionality

The principle of proportionality establishes a link between the concepts of military necessity and humanity. This principle implies that collateral civilian damage

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arising from military operations must not be excessive in relation to the direct and concrete military advantage anticipated from such operations.

AP l Arts 51 (5) (b), 56 (3), 57 (2) (a) (iii) & (b) & 85 (3) (b) & (c)

In deciding whether the principle of proportionality is being respected, the standard of measurement is the anticipated contribution to the military purpose of an attack or operation considered as a whole. The anticipated military advantage must be balanced against other consequences of the action, such as the adverse effect upon civilians or civilian objects. It involves weighing the interests arising from the success of the operation on the one hand, against the possible harmful effects upon protected persons and objects on the other.

Reservation made by Canada at the time of ratification of AP I in relation to Arts 51 (5) (b), 52 (2) & 57 (2) (a) (iii)

There must be a rational balance between the legitimate destructive effect and undesirable collateral effects. As an example, you are not allowed to bomb a refugee camp if its only military significance is that refugees in the camp are knitting socks for soldiers. As a converse example, you are not obliged to hold back an air strike on an ammunition dump simply because a farmer is ploughing a field beside it. Unfortunately, most applications of the principle of proportionality are not quite so clear cut.

AP I Art 51 (5) (b) & (7)

Reciprocity

The principle of reciprocity refers to the premise that all should be treated as you would like to be treated. Compliance with the LOAC is not only required by law, it is also to our operational advantage. If, for example, you commit a breach of the LOAC, the result is likely to be:

a. your enemy may commit the same breach towards your force;

b. your enemy may commit all kinds of other breaches against your force; and

c. in any event, you will strengthen your enemy’s will to fight to the bitter end.

GC Common Art 2

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Martens Clause

Definition and Scope of Application

Fedor Fedorovich Martens (1845-1903)

The link between treaty law and customary international law dealing with the LOAC is represented by what is known as the Martens Clause. This clause is a declaration adopted by the delegates at the 1899 Hague Conference as the preamble to the Convention Respecting the Laws and Customs of War on Land. The content of this declaration is not merely of historic interest as it is equally relevant today:

“The High Contracting Parties clearly do not intend that unforeseen cases should, in the absence of a written undertaking, be left to the arbitrary judgement of military commanders. Until a more complete code of the laws of war is issued, the High Contracting Parties deem it expedient to declare that in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usage established between civilized nations, from the laws of humanity, and dictates of the public conscience."

The Martens Clause means that insofar as the LOAC treaties are silent on a specific issue, customary international law continues to govern the situation. Furthermore, the Martens Clause implies that that is not expressly forbidden by the LOAC is not necessarily permitted.

Although the Martens Clause was initially adopted for a specific purpose, it has reappeared in many subsequent LOAC treaties and has become of general application just like its corollary which states that, “In any armed conflict the right of Parties to the conflict to choose methods or means of warfare is not unlimited.”

From LOAC OP/TAC Level

Introduction to Module 2

This module studies the important question of the regulation of the use of means and methods of warfare. This area of the LOAC has seen a long evolution since the first customary rules centuries ago. More recently, treaties addressed directly the weapons systems and their employment through various instruments. This module also includes the rules governing the precautions in the attack, primarily found in the Customary International Law (CIL) and in the first Additional Protocol to the Geneva Convention (AP I).

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These notions will be further explored in class during the lecture discussions and syndicate work.

Restrictions to the Types of Weapons

General

Diderot-Dalembert Encyclopedia

The LOAC limits the types of weapons that may be used and the manner in which those weapons are used. Weapons, projectiles, materials and means of warfare that cause superfluous injury or unnecessary suffering are prohibited.

HlVR Art 23 (e); AP l Art 35 (2)

A weapon, projectile, material or means of warfare must not cause injury or suffering which is out of proportion to its military effectiveness. Likewise, weapons which cannot be directed at specific legitimate targets or the effects of which cannot be limited are prohibited.

AP I Art 51 (4)

Superfluous Injury and Unnecessary Suffering

“Superfluous injury” and “unnecessary suffering” are closely related concepts. “Superfluous” means “more than enough, redundant, needless.” The term “unnecessary” is easily understood.

In an armed conflict, it may often be necessary to wound or even kill an adversary. To accomplish a mission a soldier is normally armed with a rifle and a bayonet. Soldiers may use their rifles to wound or kill an adversary. They may not, however, use ammunition that expands or flattens on impact ("dum-dum" bullets) which will cause a gaping wound that is extremely difficult to treat. Likewise, soldiers may use their bayonets against an adversary. However, they may not “notch” their bayonets to cause a jagged wound that result in suffering out of proportion to the aim of using the bayonets in the first place.

1899 Hague Declaration (IV,3) Concerning Expanding Bullets para 2; HlVR Art 23 (e); AP l Art 35 (2)

Operational Rationale

The aim of the use of force in the course of military operations is to enable members of the Canadian Forces (CF) to accomplish their assigned mission. Although “suffering” is likely to be inevitable, it is to the CF’s operational advantage to limit the force used to what is required to accomplish the mission.

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Limitation of the Use of Weapons

The limitations on the use of weapons fall into two broad categories:

a. prohibited weapons; and

b. restrictions on the use of lawful weapons.

Weapons and Ammunition Issued by the Canadian Forces

C7 Rifle

While CF members can be confident that weapons and ammunition issued to them comply with the LOAC, they must be careful to ensure that their weapons and ammunition are used in a manner that B-GJ-005-104/FP-021 5-2 complies with the LOAC. The use of a weapon or ammunition will be unlawful under the LOAC where it causes superfluous injury or unnecessary suffering.

HlVR Art 23 (e); AP l Art 35 (2)

Use of Captured Weapons and Ammunition

SKS Rifle

In a conflict, CF members may have to use captured enemy weapons and ammunition. While it is recognized that such weapons and ammunition may be used, they shall only be used if they do not cause superfluous injury or unnecessary suffering and are not indiscriminate in their effect. Standard military pattern weapons normally meet these criteria.

HlVR Art 23 (e); AP l Art 35 (2)

Prohibited Weapons

General

Some weapons are totally prohibited by the LOAC because they are either indiscriminate in their effect or cause superfluous injury and/or unnecessary suffering.

HlVR Art 23 (e); AP l Arts 35 (2) & 51

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Weapons Indiscriminate to Their Effect

Weapons that are indiscriminate in their effect are prohibited. A weapon is indiscriminate if it might strike or affect legitimate targets and civilians or civilian objects without distinction. Therefore, a weapon that cannot be directed at a specific legitimate target or the effects of which cannot be limited as required by the LOAC is prohibited. For example, it may be argued that the Scud missile used in the Gulf War falls in that category.

AP l Art 51

Prohibited Ammunition

Dum-Dum Bullets

The following types of ammunition are prohibited:

a. projectiles of a weight below 400 grams that are either explosive or charged with fulminating (exploding) or inflammable substances;

b. bullets that expand or flatten easily in the human body, such as bullets with a hard envelope that does not entirely cover the core or is pierced with incisions (that is, hollow point or “dum-dum” bullets); and.

c. bullets that have been dipped in poison.

However, tracer rounds are not prohibited so long as they are used for marking.

Oxford Manual of the Laws of Naval War Art 16; 1899 Hague Declaration (IV,3) Concerning Expanding Bullets para 2; HIVR Art 23 (a)

Anti-Personnel Land Mines

PFM-1 Land mine

The possession or use of anti-personnel land mines is prohibited by the Anti-Personnel Mines Convention signed in 1997 by over 100 states. Canada has already ratified the Convention. While many nations may continue to possess and use anti-personnel land mines, the CF is bound not to do so.

APM Convention Art 1 (1) (a) & (b); 1997 Anti-Personnel Mines Convention Implementation Act

An “anti-personnel mine” is a mine designed to be exploded by the presence, proximity or contact of a person and that will incapacitate, injure or kill one or more persons.

G CW P ll Art 2 (3); APM Convention Art 2 (1)

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Any mine that inflicts injury or death when an innocent act is carried out by a non-combatant is included in the above definition of anti-personnel mine. The use of an anti-personnel mine that is manually detonated (for example, by land line or electronic signal from a remote or protected position) by a CF member is not prohibited. Therefore, the use of an explosive device such as a “Claymore Mine” is not prohibited if it is manually detonated. Any anti-personnel mine that is designed to be exploded automatically by the “presence, proximity or contact of a person” cannot be lawfully used by the CF. The "Claymore Area Defence System" is not prohibited, if it is command detonated. If horizontal fragmentation weapons which propel fragments in a horizontal arc of less than 90 degrees, such as the Claymore, are placed on or above the ground, they may be used for a maximum period of 72 hours if they are located in the immediate proximity to the military unit that emplaced them, and the area is monitored by military personnel to ensure the effective exclusion of civilians.

G CW P ll Art 5 (6)

CF members serving with or training in cooperation with the armed forces of a nation using antipersonnel land mines shall follow the guidelines in Annexes A and B. Explosive booby traps are not to be employed as, or used as, a substitute for anti-personnel mines.

Canada's obligation to clear minefields after the cessation of hostilities will vary depending upon circumstances such as the degree of jurisdiction or control exercised over the territory, the terms of any peace accord and any other bilateral or multilateral arrangement. There is no legal obligation to clear mines simply because Canada is conducting operations in an Area of Responsibility (AOR) during peace support or any other operation.

Poison

Poison or poisoned weapons are illegal because of their potential to be indiscriminate. For example, the poisoning or contamination of any source of drinking water is prohibited. Posting a notice that the water has been contaminated or poisoned does not make this practice legal, as both civilians and combatants might drink from that water source and be equally affected.

HlVR Art 23 (a); AP I Arts 51 (4) (b) & (c) & 57 (1)

Non-Detectable Fragments

Weapons that cause injury by the use of fragments undetectable by X-ray in the human body are prohibited.

G CW P l para 1

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Environment-Altering Weapons

Environmental modification techniques having widespread, long lasting or severe effects are prohibited.

1976 Convention on the Prohibition of Military or any Hostile use of Environmental Modification Techniques

Gas

WW I Gas attack

The use of asphyxiating, poisonous or other gases is prohibited at all times and under all circumstances.

1925 Geneva Protocol for the Prohibition of the use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare

However, smoke grenades, smoke ammunition from indirect fire weapons and tank smoke ammunition are not prohibited so long as they are used to conceal position or movement or to mask a target.

Bacteriological/Biological Weapons

Bacteriological/biological methods of warfare are prohibited. Nations are prohibited from manufacturing, storing and using biological weapons. Both bacteriological and biological weapons are prohibited because they cause unnecessary suffering and may affect the civilian population in an indiscriminate fashion.

1972 Convention on the Prohibition of the Development Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction Art 1

Chemical Weapons

Chemical weapons, which include toxic chemicals and their precursors (those chemicals which can cause death, permanent harm or temporary incapacity to humans or animals) and munitions or devices designed to carry such chemicals, are banned.

C CW Arts 1 (1) & 2 (1) - (3)

Riot control agents

Riot control

agents

The use of riot control agents, including tear gas and other gases that have debilitating but non-permanent effects, as a means of warfare is prohibited.

C CW Arts 1 (5) & 2 (7)

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Blinding Laser Weapons

Laser weapons specifically designed, as their sole combat function or as one of their combat functions, to cause permanent blindness to unenhanced vision (that is, to the naked eye or to the eye with corrective eyesight devices) are prohibited.

G CWP lV Art 1

"Permanent blindness” means irreversible and uncorrectable loss of vision that is seriously disabling with no prospect of recovery. Serious disability is equivalent to visual acuity of less than 20/200 vision.

G CWP lV Art 4

Blinding as an incidental or collateral effect of the legitimate military employment of laser systems is not covered by the prohibition. For example, the legitimate use of a laser targeting system in a tank is lawful even if one of its collateral effects may be to cause blindness. However, such a laser targeting system could not be deliberately used to blind enemy combatants.

G CWP lV Art 1

Limitations of Lawful Weapons

General

Diderot-Dalembert

Encyclopedia

This section discusses the limitations placed on weapons that are otherwise lawful under the LOAC. Legal weapons are limited in the way in which they may be used. Specifically, no weapons may be used indiscriminately or in such a way as to cause superfluous injury or unnecessary suffering.

HlVR Art 23 (e); AP l Arts 35 (2) & 51 (4) (b) & (c)

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Incendiary Weapons

Churchill Crocodile Flame thrower tank

Incendiary weapons include any weapon or munitions that is designed to set fire to objects or to cause burn injury to humans through the action of flame, heat or a combination of the two caused by a chemical reaction of a substance delivered on a target. Examples of incendiary weapons include napalm, flame-throwers, shells, rockets, grenades, mines, bombs and other containers of incendiary materials.

G CW P III Art 1 Incendiary weapons do not include:

a. munitions which have incidental incendiary effects (for example, illuminants, tracers, smoke or signalling devices); or

b. munitions designed to combine penetration, blast or fragmentation effects with an additional incendiary effect (for example, armour piercing projectiles, fragmentation shells, explosive bombs and similar combined effects ammunition) in which the incendiary effect is not specifically designed to cause burn injury to humans, but to be used against military objectives such as armoured vehicles, aircraft and installations and facilities.

G CW P III Art 1 (1) (b)

The use of incendiary weapons against combatants is not prohibited unless such use results in superfluous injury or unnecessary suffering. However, it is prohibited in all circumstances to make the civilian population, individual civilians or civilian objects the object of attack by incendiary weapons.

HlVR Art 23 (a); AP I Art 35 (2); G CW P III Art 2 (1)

The use of incendiary weapons is prohibited:

a. in all circumstances to make any legitimate target located within a concentration of civilians the object of attack by air delivered incendiary weapons ;

b. to make any legitimate target located within a concentration of civilians the object of an attack by other than air delivered incendiary weapons, except where that target is clearly separated from the civilians and all feasible precautions are taken to minimize collateral civilian damage; and

c. on forests or plant cover except when they are either being used to cover, conceal or camouflage legitimate targets or are military objectives

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themselves (for example, if it is necessary to use incendiaries on a forest to clear a field of fire or facilitate an advance or attack against an enemy, the forest has become a military objective and may legitimately be attacked).

G CW P III Art 2 (2) - (4)

Booby Traps and Other Devices

A “booby trap” is any device or material which is designed, constructed or adapted to kill or injure, and which functions unexpectedly when a person disturbs or approaches an apparently harmless object or performs an apparently safe act. "Other Devices" means manually placed munitions and devices including improvised explosive devices designed to kill, injure or damage and which are activated manually, by remote control or automatically after a lapse of time.

G CW P ll Art 2 (4) & (5)

Booby traps and other devices, attached to or associated with the following objects, are prohibited:

a. internationally recognized protective emblems and signs;

b. sick, wounded or dead persons;

c. burial or cremation sites or graves;

d. medical facilities, equipment, supplies or transportation;

e. children's toys or objects designed for feeding, health, hygiene, clothing or education of children;

f. food or drink;

g. kitchen utensils or appliances (except those in military establishments, locations or supply depots);

h. objects of a religious nature;

i. historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples; or

j. animals or their carcasses.

G CW P ll Art 7 (1)

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It is prohibited to use booby trap or other devices in the form of apparently harmless portable object which are specifically designed and constructed to contain explosive material.

G CW P ll Art 7 (2)

Explosive booby traps are not to be employed or used as a substitute for anti-personnel mines. Where booby traps are lawfully used, they must not cause unnecessary injury or suffering.

G CW P ll Art 3 (3)

Use of Authorized Land Mines, Booby Traps and Other Devices

As discussed above, anti-personnel mines are prohibited unless they are command detonated. Antitank mines, however, continue to be lawful. Land mines are any munitions on, under or near the ground or other surface area and designed to be detonated by the presence, proximity or contact of a person or a vehicle. Land mines include remotely delivered mines such as mines delivered by artillery, rocket, mortar or aircraft.

G CW P ll Art 2 (1) & (2); APM Convention Art 2 (2)

An “anti-tank mine” is a mine designed to be exploded by the presence, proximity or contact of a vehicle and that will damage or destroy that vehicle. The primary purpose of the anti-tank mine is in fact to damage or destroy the vehicle that detonates it. However, the occupants of the vehicle that detonates an anti-tank mine or those in the vicinity may also be injured or killed.

G CW P II Art 2 (1); APM Convention Art 2 (1)

All feasible precautions must be taken to protect civilians from the effects of land mines, booby traps and similar devices. They must not be directed at civilians nor may they be used indiscriminately. It is indiscriminate to:

a. place mines or booby traps so that they are not on or not directed at a legitimate target;

b. use a means of delivery for mines or booby traps that cannot be directed at a legitimate target; and

c. place mines or booby traps so that they may be expected to cause collateral civilian damage that is excessive in relation to the concrete and direct military advantage anticipated.

G CW P ll Art 3 (8)

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Booby traps and similar devices must not be used in areas containing civilian concentrations if combat between ground forces is neither imminent nor actually taking place unless:

a. they are placed on, or in the vicinity of, an enemy military objective; or

b. measures are taken to protect civilians (for example, warning signs, sentries, fences or other warnings to civilians).

G CW P ll Art 7 (3)

The location of all pre-planned minefields and areas in which there has been large scale and pre-planned use of booby traps must be recorded. A record should also be kept of all other minefields, mines and booby traps so that they may be disarmed when they are no longer required.

G CW P ll Arts 2 (9), 9 & 10 (1)

It is prohibited to use mines, booby traps or other devices that employ a mechanism or device specifically designed to detonate the munition by the presence of commonly available mine detectors as a result of their magnetic or other non-contact influence during normal use in detection operations.

G CW P ll Art 3 (5)

A ”self-deactivating mine” permanently stops functioning when a component (for example, battery) is exhausted. Self-deactivating mines are lawful unless they are used with an anti-handling device that continues to function after the mine has stopped functioning.

G CW P ll Arts 2 (12) & 3 (6)

An “anti-handling device” is part of, linked to or under a mine and detonates when an attempt is made to tamper with the mine. An example of an anti-handling device is a hand grenade with its safety pin removed that is placed under a mine such that the grenade explodes when the mine is moved. Under Canadian doctrine, anti-handling devices are used only with anti-tank mines.

G CW P ll Art 2 (14); APM Convention Art 2 (3)

Remotely-Delivered Mines

A “remotely-delivered mine” is a mine not directly emplaced but delivered by artillery, missile, rocket, mortar or similar means, or dropped from an aircraft. Mines delivered from a land-based system from less than 500 metres are not considered to be “remotely delivered”.

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G CW P ll Art 2 (2)

Remotely-delivered land mines can only be used within the area of a military objective if their location can be accurately recorded, and they can be neutralized when they no longer serve the military purpose for which they were placed in position. Each mine must have:

a. an effective self neutralizing or destroying mechanism; or

b. a remotely controlled mechanism designed to render the mine harmless or destroy it.

G CW P ll Art 6 (3)

If circumstances permit, effective advance warning should be given where remotely-delivered mines are likely to affect civilians.

G CW P ll Art 6 (4)

Other Devices

“Other devices” are manually emplaced munitions and devices designed to kill, injure or damage and which are activated either remotely or by time delay. For example, time-delayed or remotely controlled explosives would fall into this category. The restrictions on the use of these “other devices” are the same as for land mines and booby traps.

G CW P ll Arts 2 (5) & 3 (1)

Nuclear Weapons

The United Nations General Assembly has condemned nuclear weapons as being illegal, although the international community itself is divided on this question. While nuclear weapons are not specifically prohibited by any international treaty, there is a strong argument to be made that the use of nuclear weapons would violate International Law on a variety of grounds including:

a. they would cause superfluous injury and unnecessary suffering;

b. their effect would be indiscriminate; or

c. their use would cause widespread, long-term and severe damage to the natural environment.

HIVR Art 23 (e); AP l Arts 35, 51 & 57 (2)

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At the request of the United Nations General Assembly, the International Court of Justice (ICJ) issued an advisory opinion with respect to the legality of nuclear weapons in 1996. The majority of the judges ruled that the threat or use of nuclear weapons would generally be contrary to the LOAC and in particular the principles and rules of humanitarian law. However, the ICJ went on to state that it could not reach a final decision on whether the threat or use of nuclear weapons was illegal in extreme circumstances of self-defence where the very survival of a state is at stake.

When Canada deposited its ratification of Additional Protocol I, the following reservation was made:

“It is the understanding of the Government of Canada that the rules introduced by Protocol I were intended to apply exclusively to conventional weapons. In particular, the rules so introduced do not have any effect on and do not regulate or prohibit the use of nuclear weapons.”

Rockets, Missiles and Bombardment

With the advent of modern technology many armed forces are now able to deliver weapons on target with much greater precision. However, states are not limited to the use of precision weapons and munitions. An attack by conventional, free-fall weapons or “dumb” bombs is lawful provided that the overriding principles of proportionality and superfluous injury/unnecessary suffering as well as other applicable rules are not violated.

HIVR Art 23 (e); AP l Arts 35, 51 & 57

Sea Mines

There are very few restrictions on the use of sea mines. Sea mines must be able to self neutralize if control over them is lost. Their location must be recorded. They must not be laid in neutral waters. When sea mines are first laid in the territorial waters of a state, there must be provision for free exit of neutral shipping located in the ports of the state whose territorial waters have been mined.

HVIII Arts 1 (1) & (2) & 3 (2); SRM paras 82 (b) & 84 - 86

Torpedoes

It is prohibited to use torpedoes that do not sink or become harmless when they have missed their target or completed their run.

HVIII Art 1 (3); SRM para 79

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NEW WEAPONS

Development or Acquisition of New Weapons

In the study, development, acquisition or adoption of a new weapon, means or method of warfare, there is an obligation to determine whether its employment would, in some or all circumstances, be prohibited by the LOAC.

AP l Art 36

Case Study

Working Group on Explosive Remnants of War

Canadian Response to Working Paper CCW/GGE/X/WG.1/1/WP

International Humanitarian Law Questionnaire

GROUP OF GOVERNMENTAL EXPERTS OF CCW/GGE/XI/WWG.1/WP.

THE STATES PARTIES TO THE CONVENTION 16 June 2005

ON PROHIBITIONS OR RESTRICTIONS ON

THE USE OF CERTAIN CONVENTIONAL

WEAPONS WHICH MAY BE DEEMED TO BE

EXCESSIVELY INJURIOUS OR TO HAVE

INDISCRIMINATE EFFECTS Original: ENGLISH

______________________________________________________________________________

Eleventh Session

Geneva, 2-12 August 2005

Item of the Agenda

Explosive Remnants of War

Working Group on Explosive Remnants of War

Canadian Response to Working Paper CCW/GGE/X/WG.1/1/WP.2

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International Humanitarian Law Questionnaire

Prepared by Canada

1. In his paper of 8 March 2004 the Coordinator suggested that the 2005 ERW mandate of the Group of Government Experts to the CCW should include a “Three-Step” approach to consider the implementation of existing principles of International Humanitarian Law (IHL). The Coordinator suggested this approach noting that there did not seem to be consensus concerning the relevant IHL principles and rules to be considered during the planning, targeting, weapons selection and weapons use phases of military operations. Accordingly, step one of the Coordinator’s Three Step approach seeks to identify relevant IHL principles. Step two aims to establish the status of their implementation by the various States Parties. Step three includes an examination of the adequacy of the implementation mechanisms as required by IHL.

2. Canada is of the view that there is considerable merit in addressing the issue of the wider implementation of existing IHL principles via the Coordinator’s suggested Three-Step approach. In this regard, Canada, along with Australia, New Zealand, Norway, Sweden, Switzerland, the United Kingdom and the United States of America, and in close consultation with the International Committee of the Red Cross, advanced a framework for addressing steps one and two in the form of a questionnaire, which was submitted to the GGE during the March 2005 session as Working Paper CCW/GGE/X/WG.1/WP.2. 3. The questionnaire, while framed to specifically address aspects of state practice concerning the wider implementation of IHL principles and rules applicable to the use of munitions that may become ERW, seeks to facilitate future discussion in which delegations may wish to engage concerning IHL principles implied through the questions posed. We note that the principles and rules outlined in the following responses are relevant to the use of all weapons systems, and not just to those weapons systems and munitions that may become ERW. Part 1. Applicability of Relevant IHL Principles Which existing Principles of IHL applicable to the use of force during an armed conflict are considered relevant to the use of munitions, including sub-munitions that may become ERW? (i.e. military necessity, distinction, discrimination, proportionality, precautions taken before and during an attack, superfluous injury/unnecessary suffering, environmental protection) 4. From the Canadian perspective, the key relevant operational principles of IHL applicable to the use of force during an armed conflict, which are considered relevant to the use of munitions, including sub-munitions that may become ERW, are those of military necessity, distinction and proportionality. Additionally there

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are other relevant rules and concepts which are either inherent in these principles or are ancillary to them, such as the concepts of humanity, superfluous injury and unnecessary suffering. Military Necessity 5. Canada defines “military necessity” as the justification of the use of force not forbidden by IHL, to the extent necessary in order to achieve the complete submission of an enemy at the earliest possible moment with the least possible expenditure of personnel and resources. 6. Canada views the principle of military necessity as presupposing that the force used can be and is being controlled, that the force used is necessary to achieve the military objective, and that the amount of force used is limited to that which is necessary to achieve the military objective. Military necessity justifies the application of force in accordance with IHL to the extent necessary for realization of the purpose of military operations. 7. Canada asserts, however, that military necessity is not a principle that can be considered in isolation. In particular, military necessity does not justify actions that constitute violations of IHL, as it is a factor taken into account when the rules governing the conduct of hostilities are drafted. Thus, the means to achieve military victory are not unlimited, but instead must be undertaken within the limits set by IHL. Distinction 8. Canada defines distinction as the obligation on commanders to distinguish between military objectives and civilian objects and the civilian population. Canada views the principle of distinction to be of primary importance when selecting targets prior to and during military operations. 9. Canada takes the position that the application of the principle of distinction is dependent upon the information reasonably available to military commanders at the time military operational decisions are made. In depositing its instrument of ratification to Additional Protocol I to the Geneva Conventions (Additional Protocol I), Canada made the following reservation concerning the standard for decision making relative to the application of the principle of distinction: It is the understanding of the Government of Canada that, in relation to Articles 48, 51 to 60 inclusive, 62 and 67, military commanders and others responsible for planning, deciding upon or executing attacks have to reach decisions on the basis of their assessment of the information reasonably available to them at the relevant time and that such decisions cannot be judged on the basis of information which has subsequently come to light.

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10. The principle of distinction is central to the prohibition against indiscriminate attacks. As noted in Article 51(4) of Additional Protocol I and in Article 3(8) of Amended Protocol II to the CCW, indiscriminate attacks are those that may strike military objectives and civilians or civilian objects without distinction, that is to say:

1. Attacks that are not directed at a specific military objective; 2. Attacks that employ a method or means of combat which cannot be directed at a specific military objective; or 3. Attacks that employ a method or means of combat, the effects of which cannot be limited as required by IHL.

Proportionality 11. In Canada’s judgment, the principle of “proportionality” implies that collateral civilian damage arising from military operations must not be excessive in relation to the concrete and direct military advantage anticipated from such operations. A concrete and direct military advantage exists if a military commander has an honest and reasonable expectation that the attack will make a relevant contribution to the success of a military operation. Furthermore, Canada takes the view that the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole and not from isolated or particular parts of the attack 12. What constitutes a military advantage may include a variety of factors, including the security of one’s own military forces. The fact that an attack on a legitimate target may cause civilian casualties or civilian damage does not offend the proportionality principle if the civilian casualties or civilian damage is not disproportionate to the concrete and direct military advantage to be gained. Application of the proportionality principle involves weighing the interests arising from the success of a military operation on one hand against the possible harmful effects upon civilian persons and civilian objects on the other. 13. If an attack fails to meet the minimum threshold for proportionality, where the collateral damage in terms of civilian death or injury or civilian property damage is disproportionate to the concrete and direct military advantage, then the attack is considered to be indiscriminate. Related Principles 14. Related to military necessity, distinction and proportionality and implicitly contained within them is the principle of humanity. Canada asserts that, even in an armed conflict, there are certain basic human rights that must be respected. The principle of humanity recognizes that the infliction of suffering, injury or

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destruction not actually necessary for the accomplishment of legitimate military purposes is prohibited. Application of this concept results in a specific prohibition against superfluous injury and unnecessary suffering. As evidenced by Article 35 of Additional Protocol I, the means and methods of warfare are not unlimited. This article specifically prohibits the use of weapons during military operations, which by their nature cause superfluous injury or unnecessary suffering. Further, Protocols I, III, IV and Amended Protocol II of the CCW, respectively place specific prohibitions or limitations on weapons which may be deemed to be excessively injurious or have indiscriminate effects. 15. Also related is the principle of reciprocity, which refers to the premise that one should treat others as one would want to be treated. It asserts that compliance with IHL, in addition to being required by law, is also to one’s operational advantage. Compliance with IHL principles in the planning and conduct of military operations decreases the likelihood that opposing military forces will commit the same breach against your forces, will commit other breaches of IHL against your forces, or will be as resolved to fight to the bitter end in any conflict. Part 2. Implementation of Relevant IHL Principles What measures have been taken by your State to implement those existing principles of international humanitarian law that are considered by your State as relevant to the use of munitions, including sub-munitions, that may become ERW? In answering this question, States are encouraged to address, among other issues, the following specific questions:

(i) Are the principles reflected in military doctrine and military manuals? (ii) Are the principles reflected in Rule of Engagement (ROE)? (iii) Are IHL principles taken into account: (a) In the planning of a military operation? (b) In the formal targeting procedures? (c) In order to achieve this, does your State make legal advice available at appropriate levels of command in respect of the application and operation of the relevant principles of IHL (iv) Are the members of the armed forces trained in these principles?

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(v) Does your State have a mechanism to review the legality of new weapons, methods of warfare and military doctrine? (If yes, what is the legal basis for those systems?) (vi) What other measures are taken to ensure the implementation of these principles?

16. Within the planning, targeting, weapons selection and weapons use phases of military operations, Canada undertakes an examination process designed to ensure that the conduct of military operations and the selection and use of weapons systems complies with both the precautionary and conduct regulating legal obligations to which Canada is subject. Furthermore, the process is designed to assist the commander to manage risks to best effect and to ensure compliance with any specific policy direction given by the Government of Canada. 17. Canada asserts that there are a number of key rules that formalize the principles of military necessity, distinction and proportionality. Generally, the most relevant rules supporting these principles can be found in Articles 48 to 60 of Additional Protocol I. These include a number of rules that identify specific precautions to be taken with respect to planning and executing an attack. The most significant rules include those found in Articles 51 and 57 of Additional Protocol I. Canada does not consider the rules found in Articles 51 and 57 of Additional Protocol I to be principles. Instead, Canada views these rules as highly relevant to the application of the central principles and therefore they are relevant to the discussion being undertaken as part of the ERW mandate. These rules should therefore be specifically examined as part of this process. The Use of Military Discipline 18. Canada recognizes that a number of legal obligations arise due to compliance requirements with recognized customary international law. Canada has also signed and ratified the key IHL conventions and treaties, including, the Geneva Conventions of 1949, Additional Protocol I and Additional Protocol II, the Rome Statute of the International Criminal Court, the Anti-Personnel Mine Prohibition Convention (the “Ottawa Convention”) and the CCW, including Protocols I through IV. The key obligations of these and other IHL treaties have been implemented domestically through federal legislation, including the Geneva Conventions Act, the Crimes Against Humanity and War Crimes Act, the Anti-Personnel Mines Convention Implementation Act and the Criminal Code of Canada. These federal statutes create punishable offences for breaches of all relevant IHL treaties. Importantly, these federal statutes are incorporated into the Code of Service Discipline, which is the central legislative mechanism governing the implementation of military justice in the Canadian Forces. The Code of Service Discipline is found in Part 3, Divisions 1 through 12 of the National Defence Act. The Code of Service Discipline has extra-territorial application to

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Canadian Forces service members and to various other classes of persons, who are deployed on operations throughout the world. The disciplinary legal framework implementing the key IHL obligations may be enforced against all Canadian Forces members, including those in command of, as well as those responsible for, the planning, targeting, weapons selection and weapons use phases of military operations. Military Doctrine and Military Manuals 19. The key central principles, their related concepts, and the measures taken to implement them are incorporated into the use of force doctrine. Such doctrine includes a structured decision making process for the use of force based on the creation of Rules of Engagement and Targeting Directives. Some key Canadian Forces publications in this regard include:

(a) “The Law of Armed Conflict at the Operational and Tactical Level;” (b) “Collection of Documents on the Law of Armed Conflict;” and (c) “Code of Conduct for CF Personnel;”

20. These manuals are available in PDF format on the Canadian Forces Judge Advocate General website at: http://www.forces.gc.ca/jag/training-formation/index-eng.asp. All of these manuals disseminate in varying degrees of detail the key IHL principles relating to the use of military force. Rules of Engagement and Targeting 21. In planning a Canadian military operation, strategic, operational and tactical-level commanders take into account legal considerations, including the requirements to comply with and to respect bilateral and multilateral agreements to which Canada is a party. Not all international laws apply at all times. Their application is based on factors such as the geopolitical situation and Government of Canada direction. This will influence the use of force by the Canadian Forces. Some specific considerations governing or influencing the use of force include:

(a) International laws that may affect the deployment of forces and the conduct of operations; (b) Canadian laws and the laws of the host nation, if applicable, that may affect the conduct of operations; (c) The conditions under which the Canadian Forces, when authorized, may use force to accomplish the mission;

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(d) The type of force (deadly force or non-deadly force) which may be applied; (e) The protection of personnel who are not part of the operation or force; and (f) The rights and obligations of non-combatants or neutrals.

22. Canada possesses a number of due diligence mechanisms that it uses to ensure the wider implementation of IHL principles and rules on the planning and conduct of military operations. Generation and use of these mechanisms is governed by Ministerial and bureaucratic process and the prudent exercise of command by the Canadian Forces. Legal considerations, along with any corresponding Government of Canada political objectives and policy direction, are formalized into strategic level direction provided to the mission commander from the military chain of command concerning the use of force. One such form of direction can be found in Rules of Engagement (ROE). Canada defines the term “Rules of Engagement” as: Orders issued by military authority that define the circumstances, conditions, degree, manner and limitations within which force may be applied to achieve military objectives in accordance with national law and policy.” 23. ROE constitute a structured, formalized process by which the authority to use specific levels of force in specific circumstances with specific weapon systems is regulated. They are an indispensable instrument of command and control. The Chief of Defence Staff approves all ROE utilized by the Canadian Forces during military operations. Prior to his or her approval, the ROE undergo a legal review to ensure that military force is used in a way that is compliant with IHL including customary international law, and all relevant weapons treaties to which Canada is a party that may affect the selection and use of weapons. 24. As a matter of doctrine, the Canadian Forces also uses a Targeting Directive that, when combined with the ROE, formalizes the procedures used in targeting during operations. The Targeting Directive ensures that key IHL principles of military necessity, proportionality and distinction as well as the key rules found generally in Articles 48 to 60 of Additional Protocol I are specifically met. 25. Both the ROE and the Targeting Directive are structured and defined as a matter of doctrine to ensure the systematic application of IHL at the strategic, operational and tactical levels of command. Deployment of Legal Advisers 26. Military legal advisers accompany all Canadian Forces deployed operations and provide IHL advice on the conduct of military operations at the tactical level.

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Additionally, legal advisors advise all levels of the chain of command that are involved in the planning and conduct of military operations. Specifically, military legal advisers must conduct a legal review of all operational plans and ROE prior to their approval by the chain of command. Legal advisers also provide legal advice on all targeting decisions requiring consideration by a Targeting Directive at all levels of command. Within the Canadian Forces, military legal officers belong to the Office of the Judge Advocate General and are under the command of the Judge Advocate General, a General Officer who is statutorily responsible to the Minister of National Defence. Consequently Canadian Forces legal officers are not a part of or subject to the direction of the military chain of command. They are able to provide independent legal advice to military commanders. Training in International Humanitarian Law 27. Canada provides leading-edge legal training to all Regular and Reserve Force members of the Canadian Forces concerning the IHL responsibilities and obligations of soldiers, individually and as military commanders. This training is aimed at enhancing discipline across the Canadian Forces and ensuring that the Canadian Forces carries out its missions in accordance with all applicable domestic and international laws. 28. The Canadian Forces undertakes the delivery of various forms of training to its personnel in International Humanitarian Law, including the Law of Armed Conflict. A sampling of the various forms of training delivered to Canadian Forces personnel includes the following:

(1) training in the Code of Conduct for Canadian Forces Personnel – This training package is provided to all Canadian Forces members as part of their basic recruit training. It involves indoctrination training in the central rules of conduct demanded of every Canadian Forces member engaged in military operations, such as an armed conflict to which Canada is a party, a peace support operation or a continental defence operation (see Annex A). The rules contained in the Code of Conduct for Canadian Forces personnel ensure that the Canadian Forces apply as a minimum the spirit and principles of IHL in all Canadian Forces operations;

(2) Royal Military College of Canada Military Law Course – This academic course is offered to Canadian Forces members pursuing an undergraduate university degree at Canada’s military college. It is a university credit course of one academic semester’s duration that involves training delivered by university professors (including Canadian Forces legal officers) in the IHL principles and rules governing the conduct of military operations. Central to the course curriculum is the study of the lawful conduct of armed conflict in all environments, war crimes, the lawful use of weapons, and the proper treatment of the sick and wounded, civilians, detainees and prisoners of war. This course is currently offered

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as an elective. However, commencing in 2006, this course will become a mandatory course for all Royal Military College of Canada undergraduate degree programs;

(3) Officer Professional Military Education (OPME) Program Military Law Course – This is a course offered as part of a mandatory self-study program for all Canadian Forces officers. The equivalent of one semester university course, its completion is required by all Canadian Forces commissioned officers as a pre-requisite for promotion to senior officer rank (Major/Lieutenant Commander or above). Non-commissioned officers are also encouraged to completed this course as part of their professional development process;

(4) The Law of Armed Conflict Course – This course is intended to provide greater familiarization to Canadian Forces members with IHL principles and rules. The training, consisting of lectures and syndicate discussion, is provided primarily by the Office of the Judge Advocate General. The course curriculum deals with such issues as the lawful conduct of hostilities in all environments, war crimes, the lawful use of weapons, and the proper treatment of the sick and wounded, civilians, detainees and prisoners of war during armed conflicts. Officers and Non-Commissioned Members in supervisory positions are strongly encouraged to obtain this qualification. This course is also delivered to officers attending the Caribbean Joint Command and Staff Course offered annually in Kingston, Jamaica. Finally, the Department of National Defence and the Department Foreign Affairs and International Trade jointly offer this course to foreign students as part of the Canadian Military Training Assistance Program; and

(5) Theatre and Mission Specific Pre-Deployment Training – This training is provided to every Canadian Forces member prior to deployment on an international military operation. Training packages offered under this heading are mission specific and dynamic. They are continuously amended from mission to mission and between mission rotations to ensure that deploying soldiers receive the most current and relevant training to their mission environment.

Pre-deployment training covers the central IHL principles and rules governing the conduct of Canadian Forces military operations. Soldiers also receive lecture training and participate in practical exercises concerning in the application of these principles and rules. They also receive training ranging from Rules of Engagement and Use of Force Directives to cultural sensitivities pertaining to their mission. This training is delivered through the Canadian Forces Peace Support Training Centre in Kingston, Ontario, as well as delivered directly to formed units at their pre-deployment mission training locations throughout Canada;

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Review of Weapons Legality 29. Canada views the review process of weapons systems for IHL compliance to be an important topic in any discussion of the wider or more specific aspects of IHL implementation. In accordance with Article 36 of Additional Protocol I, Canada conducts legal reviews during the process of developing, acquiring or adopting any new weapons, munitions and means or methods of armed conflict to determine whether their employment would in some or all circumstances be prohibited under IHL. 30. This presently occurs on an ad hoc basis. However, the Canadian Forces is currently in the process of creating a formalized, structured and systematic process to ensure that any weapon system it develops, acquires or employs is not prohibited by IHL, including the various weapons treaties that Canada has signed and ratified. This particularly includes prohibiting the employment of any weapon that causes superfluous injury or unnecessary suffering or that may have an indiscriminate effect. To this end, in February 2005, Canada held a workshop with invited representatives from States that have created a formalized Article 36 mechanism. This event has contributed greatly to Canada’s creation of a weapons review process, and we are proceeding apace with the maturation of the review process. Conclusion 31. The answers provided in this questionnaire give a brief synopsis of Canada’s view of the applicability of relevant IHL principles and the implementation of those principles. Canada continues to welcome and support the “Three Step” approach to identify relevant IHL principles and explore the status of their implementation in order to identify a common baseline from which discussions can progress toward a consensus. To this end, Canada intends to continue to provide meaningful contributions to the discussion relative the IHL portion of the CCW Group of Government Expert’s ERW mandate. 32. Canada recognizes that military and legal expert presentations to the Group of Government Experts can assist discussion concerning the implementation of IHL principles and rules obligations during the planning and conduct of military operations. We are willing to contribute a presentation from an expert concerning Canadian approaches to IHL implementation. Canada is also willing to consider the possibility of contributing assistance to States seeking to develop formal mechanisms to further implement IHL principles and rules. Canada welcomes any inquiries from interested States regarding IHL training and assistance opportunities that Canada may be able to offer.

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Introduction to Module 3

In this module, we will examine how the LOAC rules are applied in the context of the Land, Maritime and Air environments. Although LOAC makes generally no environmental distinction, it is important to recognize some operational specificities encountered in the three environments.

In addition, these notions will be expanded and deepened in class during the lectures, discussions, exercises and syndicate work.

Ruses

The following are examples of ruses, which are lawful:

a. surprises;

b. ambushes;

c. feigning attacks, retreats or flights;

d. simulating quiet and inactivity;

e. giving large strong points to a small force;

f. constructing works, bridges, etc., which it is not intending to use;

g. transmitting bogus signal messages, and sending bogus dispatches and newspapers with a view to their being intercepted by the enemy;

h. making use of the enemy’s signals, watchwords, wireless code signs, tuning calls and words of command;

i. conducting a false military exercise on the wireless on a frequency easily intercepted while substantial troop movements are taking place elsewhere;

j. pretending to communicate with troops or reinforcements that do not exist;

k. moving landmarks;

l. constructing dummy airfields and aircraft;

m. putting up dummy guns or dummy tanks;

n. laying dummy mines;

o. removing badges from uniforms;

p. clothing the men of a single unit in the uniforms of several different units to induce the enemy to believe that they face a large force; or

q. giving false ground signals to enable airborne personnel or supplies to be dropped in a hostile area, or to induce aircraft to land in a hostile area.

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Perfidy

It is prohibited to kill, injure or capture adversaries by resort to perfidy. Acts inviting the confidence of adversaries and leading them to believe that they are entitled to protection or are obliged to grant protection under the LOAC, with intent to betray that confidence, constitute perfidy. In other words, perfidy consists of committing a hostile act under the cover of a legal protection.

HIVR Art 23 (b) & (f); AP l Art 37 (1)

The following are examples of perfidy if a hostile act is committed while:

a. feigning an intent to negotiate under a flag of truce or to surrender;

b. feigning incapacitation by wounds or sickness;

c. feigning civilian, non-combatant status; or

d. feigning protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other states not parties to the conflict.

HIVR Arts 23 (f) & 34; AP l Art 37 (1)

Improper Use of Emblems, Signs and Signals Improper Use of the Red Cross or Red Crescent

It is prohibited to make improper use of the distinctive emblem of the Red Cross or Red Crescent.

AP l Arts 38 (1) & 85 (3) (f)

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Improper Use of Other Emblems, Signs or Signals

It is prohibited:

a. to make improper use of the other emblems, signs or signals provided for by the Geneva Conventions or Additional Protocols;

b. to deliberately misuse other internationally recognized protective emblems, signs or signals including the flag of truce and the protective emblem of cultural property;

c. to make use of the distinctive emblem of the United Nations, except as authorized by that Organization.

AP l Art 38

Flags, Military Emblems, and Uniforms of Neutral or Other States

It is prohibited to make use in armed conflict of the flags or military emblems, insignia or uniforms of neutral or other states not parties to the conflict.

AP l Art 39 (1)

Flags, Military Emblems, and Uniforms of Adverse Parties

It is prohibited to make use of the flags or military emblems, insignia or uniforms of adverse parties while engaging in attacks.

AP l Art 39 (2)

When depositing its ratification of Additional Protocol I, Canada reserved the right to make use of the flags or military emblems, insignia or uniforms of adverse parties to shield, favour, protect or impede military operations. Any decision to do so should only be carried out with national level approval.

Denial of Quarter and Improper Release of Prisoner

Denial of Quarter

It is prohibited to deny quarter. In other words, it is unlawful to order, imply or encourage that no prisoners will be taken; to threaten an adverse party that such an order will be given; or to conduct hostilities on the basis that no prisoners will be taken.

HlVR Art 23 (d); AP l Art 40; AP II Art 4 (1)

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It is prohibited to attack a combatant who is, or should be recognized as being, hors de combat (out of combat).

AP l Art 41 (1) & 85 (3) (e)

A combatant is hors de combat if that person:

a. is in the power of an adverse Party (that is, a prisoner);

b. clearly expresses an intention to surrender; or

c. has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of self defence; provided that in any of these cases this person abstains from any hostile act and does not attempt to escape.

AP l Art 41 (2)

Release of Prisoners Where Proper Evacuation Not Possible

Where persons entitled to protection as prisoners of war (PWs) have fallen into the power of an adverse party under unusual conditions of combat that prevent their evacuation as provided for in the GIII, they shall be released and all feasible precautions shall be taken to ensure their safety.

GIII Art 19 & 20; AP l Art 41 (3)

The “unusual conditions of combat” may include, for example, the capture of a PW by a long-range patrol that does not have the ability to evacuate the PW properly . In such circumstances, there would be an obligation to release the PW and take all feasible precautions to ensure his safety. Such precautions might include providing the PW with sufficient food and water or other aids to assist in rejoining unit lines.

AP l Art 41 (3)

Sabotage and Espionage

Sabotage

Sabotage is permitted under the LOAC, so long as the object of the sabotage is a legitimate target. Saboteurs are persons operating behind the lines of an adverse party to commit acts of destruction.

AP l Art 52 (2)

Saboteurs in uniform are combatants and entitled to PW status if captured.

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AP l Art 44 (2) & (3)

Civilian saboteurs or saboteurs not in uniform are not so protected and are liable to be treated as spies. Such civilian saboteurs and saboteurs not in uniform may be tried in accordance with the law of the captor and may face the death penalty. They must not, however, be punished without a fair trial.

HIVR Arts 29 & 30; GlV Arts 5 & 68 (2); AP l Arts 44 (4), 45 (3), 46 & 75

Espionage

Espionage is the collection of information clandestinely behind enemy lines or in the zone of operations while wearing civilian clothing or otherwise disguised or concealed. Spies are those who engage in espionage. Although espionage is not contrary to the LOAC, International Law provides that, if they are captured, spies may be tried in accordance with the law of the captor and may be liable to the death penalty following a proper trial.

HlVR Arts 29 & 30; GIV Arts 5 & 68 (2); AP l Arts 44 (4), 45 (3), 46 & 75

Members of the armed forces who engage in intelligence gathering while in uniform are not considered to be spies and are entitled to PW status. Members of the armed forces who engage in espionage while not in uniform can be considered as spies. For further discussion of the status of persons captured while engaging in espionage, refer to module 5 under Armed Conflict Operations (Combatant Status).

HlVR Art 29; AP l Art 46 (1) & (2)

Assassination, Bounty and Indiscriminate Attacks

Assassination and Bounty

Assassination is prohibited. Assassination means the killing or wounding of a selected non-combatant for a political or religious motive. It is not forbidden, however, to send a detachment or individual members of the armed forces to kill, by sudden attack, a person who is a combatant.

AP I Art 51 (2)

If prior information of an intended assassination should reach the party on whose behalf the act is to be committed, that party should make the utmost effort to prevent its being carried out. It is forbidden to put a price on the head of an enemy individual or to offer a bounty for an enemy "dead or alive.”

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Indiscriminate Attacks

The bombardment of any legitimate target must not be “indiscriminate.” It is prohibited to carry out an attack by bombardment by any means (aircraft, artillery, mortars, naval fire, missiles, etc.) that treats as a single legitimate target a number of clearly separated and distinct legitimate targets in an urban area or an area containing a similar concentration of civilians or civilian objects.

AP l Art 51 (4) & (5) (a) & 85 (3) (b)

An attack expected to cause collateral civilian damage that is excessive in relation to the concrete and direct military advantage anticipated is prohibited.

AP l Art 51 (5) (b) Siege Warfare

An assault against or bombardment of towns, villages, dwellings or buildings that are undefended is prohibited.

HlVR Art 25; HIX (1) - (4); AP I Arts 59 (1) & 85 (3) (d)

Where an area is defended, the commander of an attacking force must take all feasible measures to warn the opposing force of an impending bombardment, except in the case of an assault. The pillage of a town, however, even when taken by assault, is prohibited.

HIVR Arts 26, 28, 47 & 56; HIX Art 7; GIV Art 33 (2); AP I Art 57 (2) (c); AP II Art 4 (2) (g)

All necessary steps must be taken to spare, as far as possible, buildings devoted to religion, art, science and charity, hospitals and places where the sick and wounded are collected, provided they are not used at the same time for military purposes. Either the residents or the opposing force in the besieged area should indicate the buildings or places to be protected by visible signs and should notify the attacking force of these signs.

HIVR Art 27; HIX Art 5; 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict Art 4; GI Art 19(1);

GIV Art 18 (1) & (4) & 19; AP I Arts 52, 53 (a) & 85 (4) (d); AP II Art Art16

Diplomatic and consular personnel of a neutral state should not be prevented from leaving a besieged place before hostilities commence. This privilege cannot be claimed while hostilities are in progress. Should the diplomatic and consular personnel of a neutral state voluntarily decide to remain, they must undergo the same risks as other inhabitants. The commander of the attacking force may forbid all communications and access between the besieged place and the

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outside. If circumstances permit, the parties to a conflict must endeavour to conclude local agreements for the removal from besieged areas of wounded, sick, infirm, and aged persons, children and maternity cases. The parties should also permit passage to these areas of:

a. ministers of all religions;

b. medical personnel and medical equipment;

c. consignments of medical and hospital stores;

d. objects necessary for religious worship intended for the use of civilians; and

e. essential foodstuffs, clothing, and tonics intended for children under the age of 15, expectant mothers, and maternity cases.

GI Art 15 (3);GII Art 18 (2); GlV Arts 17 & 23 (1); AP I Art 70 (1) & (2)

The parties to a conflict are obliged to facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel.

GIV Art 23

No rule compels the commander of an attacking force to permit non-combatants to leave a besieged locality. It is within the discretion of the besieging commander whether or not non-combatants will be permitted to leave and under what conditions.

Civilian Populations

Use of Protected Persons to Render a Target Immune from Attack

The use of protected persons such as civilians or PWs to render legitimate targets immune from attack is prohibited.

GlV Art 28; AP l Art 51 (7)

Cultural and Religious Objects

All necessary steps must be taken to spare, as far as possible, cultural and religious objects, provided they are not being used at the time for military purposes. The circumstances in which cultural and religious objects may become legitimate targets are fully described in the module on Targeting.

HIVR Art 27; AP l Art 53

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Terrorizing the Civilian Population

Remnants of Civilians in Cambodia

Remnants of civilians in Cambodia Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited. The protection of civilians is a fundamental principle of the LOAC. A campaign of threats or violence designed to terrorize the civilian population is simply not acceptable under any circumstances, even where the civilian population exhibits a hostile attitude toward the presence of the CF.

AP l Art 51 (2); AP ll Art 13 (2)

Starvation of the Civilian Population

Starvation of civilians as a method of warfare is prohibited. Therefore, it is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population whatever the motive. The circumstances in which objects indispensable to the survival of the civilian population may be attacked are fully described in module on Targeting.

AP l Art 54 (1); AP ll Art 14

Protection of the Environment

Scorched Earth Policy on National Territory

Scorched earth in Sudan

Where a party to a conflict is defending its national territory against invasion, it may destroy objects indispensable to the survival of the civilian population with intent to deny their use by the enemy if:

a. the objects are within national territory of and under the control of the party; and

b. their destruction is required by imperative military necessity.

AP l Art 54 (5)

Where such an extreme measure is taken, the destruction of objects indispensable to the survival of the civilian population should not leave the civilian population with such inadequate food or water as to cause its starvation or force its movement.

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Protection of the Environment

Spreading chemical agents

Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare that are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.

AP l Art 35 (3)

In addition, Canada as a party to the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD Convention) has undertaken not to engage in any military or hostile use of environmental modification techniques as the means of destruction, damage or injury to any other state, which is a party to the Convention.

1976 Convention on the Prohibition of Military or any Hostile use of Environmental Modification Techniques Art 1 (1)

An “environmental modification technique” is any technique for changing, through the deliberate manipulation of natural processes, the dynamics, composition or structure of the earth which would have widespread, long-term or severe effects.

1976 Convention on the Prohibition of Military or any Hostile use of Environmental Modification Techniques Art 2

Property on the Battlefield

Destruction or Seizure of Enemy Property

The destruction or seizure of enemy property, whether it belongs to private individuals or to the state, is forbidden unless the damage or seizure is imperatively demanded by the necessities of war.

HIVR Art 56

Booty of War

All enemy public movable property captured or found on a battlefield is known as "booty" and becomes the property of the capturing state. Booty includes all articles captured with PWs other than their personal property.

HIVR Art 53; Glll Art 18 (1)

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Enemy Private Property

Enemy private movable property, other than arms and military papers captured or found on a battlefield, may be appropriated only to the extent such taking is permissible in an occupied area.

HlVR Arts 46, 53; GIV Art 53

Pillage

Pillage, the violent acquisition of property for private purposes, is prohibited. Pillage is theft, and therefore is an offence under the Code of Service Discipline.

HlVR Art 47; GlV Art 33 (2); AP ll Art 4 (2) (g)

Geographical Terms Applicable to Naval Operations

HMCS Charlottetown

Canadian Navy Maritime Task Force

Law of the Sea Geographical Terms

The following diagram illustrates geographical terms used in relation to the law of the sea. All distances shown are maximum distances in nautical miles (n.m.)

San Remo Manual on International Law Applicable to Armed Conflicts at Sea. International Institute of Humanitarian Law, Cambridge: Cambridge University Press, 1995.

UN Convention on the Law of the Sea

The following terms used in this chapter are defined in the Glossary: transit passage; international straits; archipelagic sea lanes; archipelagic waters; archipelagic sea lanes passage and innocent passage. These definitions are derived from UNCLOS, which is the most accepted source for the law of the sea.

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Areas of Naval Warfare

As a general rule, hostile actions by naval forces may be conducted in, on or over:

a. the territorial sea and internal waters; the land territories; the exclusive economic zone (EEZ) and continental shelf ; and the archipelagic waters, of belligerent States;

b. the high seas; and

c. the EEZ and the continental shelf of neutral states.

SRM para 10

Parties to the conflict are encouraged to agree that no hostile actions will be conducted in marine areas containing:

a. rare or fragile ecosystems; or

b. the habitat of depleted, threatened or endangered species or other forms of marine life.

SRM para 11

In carrying out operations in areas where neutral states enjoy sovereign rights, jurisdiction, or other rights under International Law, belligerents shall have due regard for the legitimate rights and duties of those neutral states.

SRM para 12

Neutral, Archipelagic and Territorial Waters

Neutral Waters and Airspace

“Neutral waters” are the internal waters, territorial sea, and archipelagic waters of neutral states. “Neutral airspace” is the airspace over neutral waters and the land territory of neutral states.

SRM para 14

Hostile Actions from or in Neutral Waters

Hostile actions by belligerent forces are forbidden within and over neutral waters, including neutral waters comprising an international strait and waters in which the right of archipelagic sea lanes passage may be exercised.

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SRM para 15

Examples of “hostile" actions include:

a. attack on or capture of persons or objects located in, on or over neutral waters or territory;

b. use of neutral waters or territory as a base of operations, including attack on or capture of persons or objects located outside neutral waters, if the attack or seizure is conducted by belligerent forces located in, on or over neutral waters;

c. laying of mines; or

d. visit and search, diversion or capture.

SRM para 16

Use of Neutral Waters as a Sanctuary

Belligerent forces may not use neutral waters as a sanctuary.

SRM para 17

Regulation of Passage through Neutral Waters

A neutral state may, on a non-discriminatory basis, impose conditions or prohibit entry to or innocent passage through its neutral waters by belligerent warships and auxiliary vessels. However, a neutral state may not interfere with transit passage or archipelagic sea lanes passage.

SRM paras 19, 29 & 31

Actions Permitted in Neutral Waters

A neutral state has a duty of impartiality. However, a neutral state may, without jeopardizing its neutrality, permit the following acts within its neutral waters:

a. innocent passage through its territorial sea or its archipelagic waters by warships, auxiliary vessels and prizes of belligerent states (warships, auxiliary vessels and prizes may employ pilots of the neutral state during passage);

b. replenishment by a belligerent warship or auxiliary vessel of its food, water and fuel sufficient to reach a port in its own territory; and

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c. repairs of belligerent warships or auxiliary vessels found necessary by the neutral state to make them seaworthy, but such repairs may not restore or increase their fighting strength.

SRM para 20

Time Limit on Passage Through Neutral Waters

A belligerent warship or auxiliary vessel may not extend the duration of its passage through neutral waters, or its presence in those waters for replenishment or repair, for longer than 24 hours unless unavoidable on account of damage or the stress of weather. This rule does not apply in international straits and waters in which the right of archipelagic sea lanes passage is exercised.

SRM para 21

While belligerent forces may exercise the right of innocent passage, they may be considered to have used neutral waters as a “base of operations” if their presence in those waters is for the purpose of gaining military advantage.

SRM para 16

Duty of State to Prevent Violations of Neutrality

A neutral state is under an obligation to take the measures necessary to terminate a violation of its neutrality by a belligerent.

SRM para 15

If the neutral state fails to terminate the violation of its neutral waters by a belligerent, the opposing belligerent must notify the neutral state and give it a reasonable time to terminate the violation. The belligerent may, in the absence of any feasible and timely alternative, use such force as is strictly necessary to respond to the threat posed by the violation.

SRM para 22

International Straits and Archipelagic Sea Lanes

Transit Passage of Belligerents Through Neutral International Straits and Archipelagic Sea Lanes

Belligerent warships, auxiliary vessels and military or auxiliary aircraft may exercise the rights of transit passage through, under or over neutral international straits and the rights of archipelagic sea lanes passage (ASL passage) provided by International Law.

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SRM para 23

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Neutrality of Border States

The neutrality of a state bordering an international strait is not jeopardized by the transit passage of belligerent warships, auxiliary vessels, or military or auxiliary aircraft, nor by the innocent passage of belligerent warships or auxiliary vessels through that strait.

SRM para 24

Neutrality of Archipelagic States

The neutrality of an archipelagic state is not jeopardized by the exercise of ASL passage by belligerent warships, auxiliary vessels, or military or auxiliary aircraft.

SRM para 25

Transit Passage of Neutrals Through Belligerent International Straits and Archipelagic Waters

Neutral warships, auxiliary vessels, military and auxiliary aircraft may exercise the rights of transit passage provided by International Law through, under and over belligerent international straits and archipelagic waters. The neutral state should, as a precautionary measure, give timely notice of its exercise of the rights of passage to the belligerent state.

SRM para 26

Transit Passage and Archipelagic Sea Lanes Passage

The rights of transit passage and ASL passage applicable to international straits and archipelagic waters in peacetime continue to apply in times of armed conflict. The laws and regulations of states bordering straits and archipelagic states relating to transit passage and ASL passage adopted in accordance with International Law remain applicable.

SRM para 27

Belligerent and neutral surface ships, submarines and aircraft have the rights of transit passage and SL passage through, under, and over all straits and archipelagic waters to which these rights generally apply.

SRM para 28

Neutral Regulation of Transit Passage and Archipelagic Sea Lanes Passage

Neutral states may not suspend, hamper or otherwise impede the right of transit passage or the right of ASL passage.

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SRM para 29

Obligations of a Belligerent in Transit Passage or Archipelagic Sea Lanes Passage

A belligerent in transit passage through, under and over a neutral international strait, or in ASL passage through, under and over neutral archipelagic waters, is required:

a. to proceed without delay,

b. to refrain from the threat or use of force against the territorial integrity or political independence of the neutral littoral or archipelagic state, or in any other manner inconsistent with the purposes of the Charter of the United Nations, and

c. otherwise to refrain from any hostile actions or other activities not incident to their transit.

SRM para 30

Defensive Measures by Belligerents in Transit Passage or Archipelagic Sea Lanes Passage

Belligerents passing through, under and over neutral straits or waters in which the right of ASL passage applies are permitted to take defensive measures consistent with their security, including launching and recovery of aircraft, screen formation steaming and acoustic and electronic surveillance. Belligerents in transit or ASL passage may not, however, conduct offensive operations against enemy forces, nor use such neutral waters as a place of sanctuary, nor as a base of operations.

SRM para 30

Innocent Passage

In addition to the exercise of the rights of transit and ASL passage, belligerent vessels and auxiliary vessels may exercise the right of innocent passage through neutral international straits and archipelagic waters in accordance with international law. However, belligerents must observe regulations that may be imposed by bordering neutral states and time limits for travel.

SRM paras 15, 17 & 31

Neutral vessels may likewise exercise the right of innocent passage through belligerent international straits and archipelagic waters.

SRM para 32

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The right of non-suspendable innocent passage ascribed to certain international straits by International Law may not be suspended in time of armed conflict.

SRM para 33

Exclusive Economic Zone and Continental Shelf

Regard for Rights of Coastal State

If hostile actions are conducted within the EEZ or over the continental shelf of a neutral state, belligerent states shall have due regard for the rights and duties of that state including:

a. the exploration and exploitation of the economic resources of the EEZ and the continental shelf, and

b. the protection and preservation of the marine environment. They shall, in particular, have due regard for artificial islands, installations, structures and safety zones established by neutral states in the EEZ and on the continental shelf.

SRM para 34

Mines in the Exclusive Economic Zone or Continental Shelf

Mine Laying

If a belligerent lays mines in the EEZ or the continental shelf of a neutral state, the belligerent shall notify that state and:

a. shall ensure that the size of the minefield and the type of mines used do not endanger artificial islands, installations and structures, nor interfere with access thereto, and

b. shall avoid so far as practicable interference with the exploration or exploitation of the zone by the neutral state.

Due regard shall also be given to the protection and preservation of the marine environment.

SRM para 35

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High Seas and Sea-Bed Beyond National Jurisdiction

Regard for Rights of Neutrals

Hostile actions on the high seas shall be conducted with due regard for the exercise by neutral states of rights of exploration and exploitation of the natural resources of the sea-bed, ocean floor, and the subsoil thereof, beyond the national jurisdiction of that state.

SRM para 36

Cables and Pipelines

Belligerents shall take care to avoid damage to cables and pipelines laid on the sea-bed which do not exclusively serve the belligerents.

SRM para 37

Targeting

Submarines

Victoria Class Submarine

Oberon Class Submarine

Victoria Class submarine Oberon Class submarine Submarines, in their actions towards merchant ships, must conform to the same LOAC rules to which surface ships are subject. In particular, except in the case of a persistent refusal to stop on being summoned or of active resistance to visit and search, a warship, whether vessel or submarine, may not sink or render incapable of navigation a merchant ship without having first placed passengers, crew and ship’s papers in a place of safety.

1936 London Procès-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of London of 22 April 1930 Rules (1) & (2); SRM paras 60 (e), 67 (a), 139 & 151

For this purpose, the ship’s boats are not regarded as a place of safety unless the safety of the passengers and crew is assured, in the existing sea and weather conditions, by the proximity to land or the presence of another vessel, which is in a position to take them aboard.

1936 London Procès-Verbal Relating to the Rules of Submarine Warfare Set Forth in Part IV of the Treaty of London of 22 April 1930 Rule (2); SRM para 139 (a)

This rule, as part of the London Protocol of 1936 on submarine warfare, further defined “merchant ships” as not including ships that are incorporated into the

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belligerent’s war effort. Thus, under this rule merchant ships under convoy of enemy warships or military aircraft may be attacked because they are deemed to be resisting visit or search.

Indiscriminate Attacks

The bombardment of any legitimate target must not be “indiscriminate”. It is prohibited to carry out an attack by bombardment by any means (such as aircraft, naval fire and missiles) that treats as a single legitimate target a number of clearly separated and distinct legitimate targets in an urban area or an area containing a similar concentration of civilians or civilian objects.

AP I Art 51 (5) (a)

This prohibition applies to shore bombardments by naval forces. In this respect, “shore bombardments” include bombardments from both ships and aircraft. An attack expected to cause collateral civilian damage that is excessive in relation to the concrete and direct military advantage anticipated is prohibited.

AP I Art 51 (5) (b)

Protected Enemy Vessels

Enemy Vessels Exempt from Attack

The following enemy vessels are protected and may not be attacked:

a. hospital ships;

b. small craft used for coastal rescue operations and other medical transports;

c. vessels granted safe conduct by agreement between the belligerent parties (e.g., vessels transporting PWs or engaged in humanitarian missions);

d. vessels engaged in transporting cultural property under special protection;

e. passenger vessels carrying only civilian passengers;

f. vessels charged with religious, non-military scientific or philanthropic missions;

g. small coastal fishing vessels and small boats engaged in local coastal trade, but they are subject to the regulations of a belligerent naval commander operating in the area and to inspection;

h. vessels which have surrendered; and

i. life rafts and life boats.

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SRM para 47

Conditions of Protection

The vessels listed above are protected and exempt from attack only if they:

a. are innocently employed in their normal role;

b. submit to identification and inspection when required; and

c. do not intentionally hamper the movement of combatants and obey orders to stop or move out of the way when required.

SRM para 48

Loss of Protection by Hospital Ships

A hospital ship loses its protection from attack if it violates any of the three conditions in paragraph 42. However, a hospital ship’s protection is lost only after due warning has been given with a reasonable time limit to terminate the violation, and such warning has remained unheeded.

SRM para 49

A hospital ship that persists, after a warning, in violating a condition of its protection renders itself liable to capture or other necessary measures to enforce compliance.

SRM para 50

Attack Against a Hospital Ship

A hospital ship may only be attacked as a last resort if:

a. diversion or capture is not feasible;

b. no other method is available for exercising military control;

c. the circumstances of non-compliance are sufficiently grave that the hospital ship has become, or may be reasonably assumed to be, a legitimate target; and

d. the collateral casualties or damage will not be disproportionate to the military advantage gained or expected.

SRM para 51

Attack Against Other Protected Vessels

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If any other protected vessel breaches the conditions in paragraph 42, it may be attacked only if:

a. diversion or capture is not feasible;

b. no other method is available for exercising military control;

c. the circumstances of non-compliance are sufficiently grave that the vessel has become, or may be reasonably assumed to be, a legitimate target; and

d. the collateral casualties or damage will not be disproportionate to the military advantage gained or expected.

SRM para 52

Attacks

Enemy Warships and Aircraft

Enemy warships, military aircraft, auxiliary vessels, and auxiliary aircraft that are legitimate targets and may be attacked. Such vessels and aircraft may not be attacked if they are protected under paragraph 41.

SRM para 47

Enemy Merchant Vessels

Enemy merchant vessels may only be attacked if they are legitimate targets.

SRM para 59

The following activities may render enemy merchant vessels legitimate targets:

a. engaging in belligerent acts on behalf of the enemy (e.g., laying mines, minesweeping, cutting undersea cables and pipelines, engaging in visit and search of neutral merchant vessels or attacking other merchant vessels);

b. acting as an auxiliary to an enemy’s armed forces (e.g., carrying troops or replenishing warships);

c. being incorporated into or assisting the enemy’s intelligence gathering system (e.g., engaging in reconnaissance, early warning, surveillance, or command, control and communications missions);

d. sailing under convoy of enemy warships or military aircraft;

e. refusing an order to stop or actively resisting visit, search or capture;

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f. being armed to an extent that they could inflict damage to a warship (this excludes light individual weapons for the defence of personnel and purely deflective systems such as “chaff”); or

g. otherwise making an effective contribution to military action.

SRM para 60

Neutral Merchant Vessels

Merchant vessels flying the flag of neutral states may not be attacked unless they:

a. are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture;

b. engage in belligerent acts on behalf of the enemy;

c. act as auxiliaries to the enemy’s armed forces;

d. are incorporated into or assist the enemy’s intelligence system;

e. sail under convoy of enemy warships or military aircraft; or

f. otherwise make an effective contribution to the enemy’s military action, and it is not feasible for the attacking forces to first place passengers and crew in a place of safety. Unless circumstances do not permit, they are to be given a warning, so that they can re-route, off-load, or take other precautions.

SRM para 67

The mere fact that a neutral merchant vessel is armed provides no grounds for attacking it.

SRM para 69

Rules for the Use of Sea Mines

Basic Rule

There are very few restrictions on the use of sea mines. Sea mines must be able to self-neutralize if control over them is lost. Their location must be recorded. They must not be laid in neutral waters. When sea mines are first laid in the territorial waters of a state, there must be provision for free exit of neutral shipping located in the ports of the state whose territorial waters have been mined.

SRM paras 81, 84, 85 & 86

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Free Floating Mines

It is forbidden to use free-floating mines unless:

a. they are directed against a legitimate target; and

b. they become harmless within an hour after loss of control over them.

SRM para 82

Notification

A belligerent must give notification of the laying of armed mines or the arming of pre-laid mines. No notification is required for mines capable of being controlled so that they detonate only against vessels that are legitimate targets.

SRM para 83

Prevention of Passage Between Neutral and International Waters

Mining shall not have the practical effect of preventing passage between neutral waters and international waters.

SRM para 87

Regard for the Use of the High Seas By Neutrals

The mine-laying states shall pay due regard to the legitimate uses of the high seas by, among other things, providing safe alternative routes for shipping of neutral states.

SRM para 88

Transit Passage and Archipelagic Sea Lanes Passage

Transit passage through international straits and passage through waters subject to the right of ASL passage shall not be impeded unless safe and convenient alternative routes are provided.

SRM para 89

Removal of Mines After Cessation of Hostilities

After the cessation of active hostilities, parties to the conflict shall do their utmost to remove or render harmless the mines they have laid. Each party shall remove its own mines. With regard to mines laid in the territorial seas of the enemy, each party shall notify their position and shall proceed with the least possible delay to

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remove the mines in its territorial sea or otherwise render the territorial sea safe for navigation.

SRM para 90

Parties to the conflict shall endeavour to conclude agreements among themselves, with other states and with international organizations on the provision of information, technical support and material assistance necessary to remove minefields or otherwise render them harmless.

SRM para 91

Removal of Mines by Neutral States

Neutral states do not commit an act inconsistent with the laws of neutrality by clearing mines laid in violation of the LOAC.

SRM para 92

Blockade

A blockade is the surrounding or blocking of a place such as a port to prevent entry and exit of supplies.

Declaration of a Blockade

A blockade shall be declared. A party declaring a blockade shall notify all belligerents and neutral states. The declaration shall specify the commencement, duration, location, and extent of the blockade and the period within which vessels of neutral states may leave the blockaded coastline. The force maintaining the blockade may be stationed at a distance determined by military requirements.

SRM paras 93, 94 & 96

Blockade Must be Effective

A blockade must be effective. To be effective, a blockade must be maintained by a surface, air or subsurface force or other mechanism that is sufficient to render entry into or exit from the blockaded area dangerous.

SRM para 95

Capture of/or Attack on Merchant Vessels

Merchant vessels believed on reasonable grounds to be breaching a blockade may be captured. Merchant vessels which, after prior warning, clearly resist capture may be attacked.

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SRM para 98

Restrictions

A blockade:

a. must not bar access to the ports and coasts of neutral states, and

b. must be applied impartially to the vessels of all states.

SRM paras 99 & 100

Cessation or Alteration of a Blockade

The cessation, temporary lifting, re-establishment, extension or other alteration of a blockade must be declared. Belligerents and neutral states must be notified of the declaration.

SRM para 101

Circumstances in which a Blockade is Prohibited

The declaration or establishment of a blockade is prohibited if:

a. it has the sole purpose of starving the civilian population or denying it other objects essential for its survival; or

b. the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade.

SRM para 102

Food and Other Objects Essential to the Survival of the Civilian Population

If the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide for free passage of such foodstuffs and other essential supplies, subject to:

a. the right to prescribe the technical arrangements, including search, under which such passage is permitted; and

b. the condition that the distribution of such supplies shall be made under the local supervision of a Protecting Power or a humanitarian organization which offers guarantees of impartiality, such as the International Committee of the Red Cross.

SRM para 103

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The blockading belligerent shall allow the passage of medical supplies for the civilian population or for the wounded and sick members of armed forces, subject to the right to prescribe technical arrangements, including search, under which such passage is permitted.

SRM para 104

Zones

General

Parties to naval conflicts have on a number of occasions established different kinds of zones in and over water areas that deny or restrict access to vessels and aircraft of states that are not parties to the conflict. Vessels or aircraft entering such zones risk being attacked. These zones have been given a variety of names including exclusion zones, military areas, barred areas, war zones and operational zones. A belligerent is not absolved of its duties under International Law by establishing zones that might adversely affect the legitimate uses of defined areas of the sea. In particular, such zones are not “free fire zones”.

SRM para 105

Obligations of a Belligerent Establishing a Zone

If a belligerent establishes a zone:

a. The law continues to apply in the same manner both inside and outside the zone. The practical effect of a zone is to warn shipping that hostilities are taking place and that there is a greater risk if entry into the zone occurs.

b. The extent, location and duration of the zone and the measures imposed shall not exceed what is strictly required by military necessity and the principle of proportionality.

c. Due regard shall be given to the rights of neutral states to legitimate uses of the seas.

d. Necessary safe passage through the zone for neutral vessels and aircraft shall be provided:

(1) where the geographical extent of the zone significantly impedes free and safe access to the ports and coasts of a neutral state;

(2) in other cases where normal navigation routes are affected, except where military requirements do not permit.

e. The commencement, duration, location and extent of the zone, as well as the restrictions imposed, shall be publicly declared and appropriately notified.

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SRM para 106

Neutrals

Compliance with the measures taken by one belligerent in the zone shall not be construed as an act harmful to the opposing belligerent. Therefore, if a neutral vessel does not enter or leaves the zone then the neutral has not done anything inappropriate in respect of another belligerent to the conflict.

SRM para 107

Operations Outside of the Zone

The existence of a zone does not preclude operations being carried on outside of the zone.

Lawful and Unlawful Tactics

Ruses of War

Ruses of war are measures taken to obtain advantage of the enemy by confusing or misleading them.

AP l Art 37 (2)

Ruses of war are more formally defined as acts, which are intended to mislead an adversary or to induce that adversary to act recklessly. Ruses must not infringe any rule of the LOAC. Ruses are lawful if they are not treacherous, perfidious and do not violate any express or tacit agreement.

AP l Art 37 (2); SRM para 110

The following are examples of ruses, which are lawful:

a. surprises;

b. feigning attacks, retreats or flights;

c. simulating quiet and inactivity;

d. transmitting bogus signal messages, and sending bogus dispatches and newspapers with a view to their being intercepted by the enemy;

e. making use of the enemy’s signals, watchwords, wireless code signs, tuning calls and words of command;

f. conducting a false military exercise on the wireless on a frequency easily intercepted while substantial naval operations are taking place elsewhere; and

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g. pretending to communicate with forces that do not exist.

Certain types of ruses are not permitted. Warships and auxiliary vessels are prohibited from opening fire while flying a false flag. They may, however, display the enemy flag or a neutral flag during pursuit. Such conduct at sea is accepted or at least tolerated, whether the ship in question is pursuing an enemy ship or is trying to escape from it.

SRM para 110

Warships and auxiliary vessels are also prohibited from actively simulating the status of:

a. hospital ships, small coastal rescue craft or medical transports;

b. vessels on humanitarian missions;

c. passenger vessels carrying civilian passengers;

d. vessels protected by the United Nations flag;

e. vessels guaranteed safe conduct by prior agreement between the parties, including cartel vessels;

f. vessels entitled to be identified by the emblem of the Red Cross or Red Crescent; or

g. vessels engaged in transporting cultural property under special protection.

SRM para 110

Perfidy

It is prohibited to kill, injure or capture adversaries by resort to perfidy. Acts inviting the confidence of adversaries and leading them to believe that they are entitled to protection or are obliged to grant protection under the LOAC, with intent to betray that confidence, constitute perfidy. In other words, perfidy consists of committing a hostile act under the cover of a legal protection.

SRM para 111; AP l Art 37 (1)

The following are examples of perfidy if a hostile act is committed while:

a. feigning an intent to negotiate under a flag of truce;

b. feigning distress or surrender (e.g., by sending a distress signal or by the crew taking to the life rafts);

c. feigning incapacitation by wounds or sickness;

d. feigning civilian, non-combatant status; or

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e. feigning protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other states not parties to the conflict.

AP l Art 37 (1)

Interception, Visit, Search and Diversion

Determination of Enemy Character of Vessels and Aircraft

The fact that a merchant vessel is flying the flag of an enemy state or that a civil aircraft bears the marks of an enemy state is conclusive evidence of its enemy character.

SRM para 112

The fact that a merchant vessel is flying the flag of a neutral state or a civil aircraft bears the marks of a neutral state is prima facie evidence of its neutral character.

SRM para 113

If the commander of a warship suspects that a merchant vessel flying a neutral flag in fact has enemy character, the commander is entitled to exercise the right of visit and search, including the right of diversion for search.

SRM para 114

If the commander of a military aircraft suspects that a civil aircraft with neutral marks in fact has enemy character, the commander is entitled to exercise the right of interception and, if circumstances require, the right to divert for the purpose of visit and search.

SRM para 115

If, after visit and search, there are reasonable grounds for suspicion that the merchant vessel flying a neutral flag or a civil aircraft with neutral marks has enemy character, the vessel or aircraft may be captured as a prize subject to adjudication.

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SRM para 116

Enemy character can be determined by registration, ownership, charter or other criteria.

SRM para 117

Basic Rule for the Visit and Search of Merchant Vessels

In exercising their legal rights in an international armed conflict at sea, belligerent warships and military aircraft have a right to visit and search merchant vessels outside neutral waters where there are reasonable grounds for suspecting that they are subject to capture.

SRM para 118

Neutral Merchant Vessels Under Convoy of Accompanying Neutral Warships

A neutral merchant vessel is exempt from the exercise of the right of visit and search if it meets the following conditions:

a. it is bound for a neutral port;

b. it is under the convoy of an accompanying neutral warship of the same nationality or a neutral warship of a state with which the flag state of the merchant vessel has concluded an agreement providing for such convoy;

c. the flag state of the neutral warship warrants that the neutral merchant vessel is not carrying contraband or otherwise engaged in activities inconsistent with its neutral status; and

d. the commander of the neutral warship provides, if requested by the commander of an intercepting belligerent warship or military aircraft, all information as to the character of the merchant vessel and its cargo as could otherwise be obtained by visit and search.

SRM para 120

Diversion

If visit and search at sea is impossible or unsafe, a belligerent warship or military aircraft may divert a merchant vessel to an appropriate area or port in order to exercise the right of visit and search.

SRM para 121

For other purposes (e.g., as an alternative to visit and search) a neutral merchant vessel may, with its consent, be diverted from its declared destination.

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SRM para 119

Measures of Supervision

To avoid the necessity of visit and search, belligerent states may establish reasonable measures for the inspection of cargo of neutral merchant vessels and certification that a vessel is not carrying contraband.

SRM para 122

The fact that a neutral merchant vessel has submitted to such measures of supervision, such as the inspection of its cargo and grant of certificates of non-contraband cargo by one belligerent, is not an act of unneutral service with regard to an opposing belligerent.

SRM para 123

To prevent the need for visit and search, neutral states are encouraged to enforce reasonable control measures and certification procedures to ensure that their merchant vessels are not carrying contraband.

SRM para 124

Capture of Enemy Vessels and Goods

General Rule

Enemy vessels, whether merchant or otherwise, and goods on board such vessels may be captured outside neutral waters unless they are exempt from capture as set out below. Prior exercise of visit and search is not required.

SRM para 135

Enemy Vessels Exempt from Capture

The following enemy vessels are exempt from capture:

a. hospital ships and small craft used for coastal rescue operations;

b. other medical transports, so long as they are needed for the wounded, sick and shipwrecked on board;

c. vessels granted safe conduct by agreement between the belligerent parties (e.g., vessels engaged in the transport of PWs or engaged in humanitarian missions);

d. vessels engaged in transporting cultural property under special protection;

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e. vessels charged with religious, non-military scientific or philanthropic missions; and

f. small coastal fishing vessels and small boats engaged in local coastal trade, but they are subject to the regulations of a belligerent naval commander operating in the area and to inspection.

SRM para 136

Conditions for Exemption from Capture

The enemy vessels are exempt from capture only if they:

a. are innocently employed in their normal role;

b. do not commit acts harmful to the enemy;

c. immediately submit to identification and inspection when required; and

d. do not intentionally hamper the movement of combatants and obey orders to stop or move out of the way when required.

SRM para 137

Capture of Enemy Merchant Vessels

Capture of an enemy merchant vessel is exercised by taking such vessel as prize for adjudication. If military circumstances preclude taking such a vessel as a prize at sea, it may be diverted to an appropriate area or port in order to complete capture.

SRM para 138

Destruction of Enemy Merchant Vessels

A captured enemy merchant vessel may only be destroyed, as an exceptional measure, when military circumstances preclude taking or sending such a vessel for adjudication as an enemy prize and the following conditions are met beforehand:

a. the safety of passengers and crew is provided for (for this purpose, the ship’s boats are not regarded as a place of safety unless the safety of the passengers and crew is assured in the prevailing sea and weather conditions by the proximity of land or the presence of another vessel which is in a position to take them on board);

b. documents and papers relating to the prize are safeguarded; and

c. if feasible, personal effects of the passengers and crew are saved.

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SRM para 139

Destruction of Enemy Passenger Vessels

The destruction of enemy passenger vessels carrying only civilian passengers is prohibited at sea. For the safety of the passengers, such vessels shall be diverted to an appropriate area or port in order to complete capture.

SRM para 140

Capture of Neutral Merchant Vessels and Goods

General Rule

Neutral merchant vessels are subject to capture outside neutral waters if they are engaged in any of the following activities:

a. are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture;

b. engage in belligerent acts on behalf of the enemy;

c. act as auxiliaries to the enemy’s armed forces;

d. are incorporated into or assist the enemy’s intelligence system;

e. sail under convoy of enemy warships or military aircraft; or

f. otherwise make an effective contribution to the enemy’s military action, and it is not feasible for the attacking forces to first place passengers and crew in a place of safety. Unless circumstances do not permit, they are to be given a warning, so that they can re-route, off-load, or take other precautions.

SRM para 146

Neutral merchant vessels may also be captured if it is determined as a result of visit and search or by other means, that they:

a. are carrying contraband;

b. are on a voyage especially undertaken with a view to the transport of individual passengers who are embodied in the armed forces of the enemy;

c. are operating directly under enemy control, orders, charter, employment or direction;

d. present irregular or fraudulent documents, lack necessary documents, or destroy, deface or conceal documents;

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e. are violating regulations established by a belligerent within the immediate area of naval operations; or

f. are breaching or attempting to breach a blockade.

SRM para 146

Prize for Adjudication

Capture of a neutral merchant vessel is exercised by taking such vessel as a prize for adjudication.

SRM para 146

Capture of Goods on Board Neutral Merchant Vessels

Goods on board neutral merchant vessels are subject to capture only if they are contraband.

SRM para 147

Contraband is defined as goods which are ultimately destined for territory under the control of the enemy and which may be susceptible for use in armed conflict.

SRM para 148

To exercise the right of capture as a result of the presence of contraband on a neutral merchant ship, the belligerent must have published contraband lists. The precise nature of a belligerent’s contraband list may vary according to the particular circumstances of the armed conflict. Contraband lists shall be reasonably specific.

SRM para 149

Free Goods

Goods not on the belligerent’s contraband list are “free goods”, that is, not subject to capture. As a minimum, “free goods” shall include the following:

a. religious objects;

b. articles intended exclusively for the treatment of the wounded and sick and for the prevention of disease;

c. clothing, bedding, essential foodstuffs, and means of shelter for the civilian population so long as there is no reason to believe that such goods will be diverted to other purposes resulting in a definite military advantage to the enemy;

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d. items destined for PWs, including individual parcels and collective relief shipments containing food, clothing, educational, cultural, and recreational articles;

e. goods otherwise specifically exempted from capture by international treaty or by special arrangement between belligerents; and

f. other goods not susceptible for use in armed conflict.

SRM para 150

Destruction of Captured Neutral Merchant Vessels

A captured neutral vessel may, as an exceptional measure, be destroyed when military circumstances preclude taking or sending such a vessel for adjudication as an enemy prize, only if the following conditions are met beforehand:

a. the safety of passengers and crew is provided for (for this purpose the ship’s boats are not regarded as a place of safety unless the safety of the passengers and crew is assured in the prevailing sea and weather conditions, by the proximity of land, or the presence of another vessel which is in a position to take them on board);

b. documents and papers relating to the captured vessel are safeguarded; and

c. if feasible, personal effects of the passengers and crew are saved.

SRM para 151

The destruction of a captured neutral merchant vessel shall not be ordered without there being entire satisfaction that the captured vessel can neither be sent into a belligerent port, nor diverted, nor properly released. Destruction shall be subject to adjudication.

SRM para 151

Destruction of Captures Neutral Merchant Vessels for Carrying Contraband

A captured neutral merchant vessel may not be destroyed for carrying contraband unless the contraband, reckoned either by value, weight, volume or freight, forms more than half the cargo.

SRM para 151

Destruction of Captured Neutral Passenger Vessels

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The destruction of captured neutral passenger vessels carrying civilian passengers is prohibited at sea. For the safety of the passengers, such vessels shall be diverted to an appropriate port in order to complete capture.

SRM para 152

Areas of Operation in an Armed Conflict General Area of Air Warfare

During an armed conflict, parties to the conflict are entitled to conduct air operations in the national airspace of any party to the conflict and international airspace. However, operations in international airspace must be conducted with due regard for the rights of those who are not parties to the conflict.

Operational Zones

Parties to a conflict may, by appropriate notice, establish areas of immediate air operations where they pursue combat activities. Such zones may exist over the territories and territorial waters of all states involved in the hostilities. All aircraft entering such zones, including the aircraft of neutral states, risk damage from the hostilities.

Neutral Airspace

Military aircraft must not enter the airspace of a neutral state, even in hot pursuit of a hostile aircraft unless the neutral airspace is a known sanctuary for the hostile aircraft.

H RAW Art 40

Military aircraft entering neutral airspace may be attacked by aircraft of the neutral state in defence of their neutrality and may be liable for damage sustained by the neutral state as a result of the unlawful intrusion.

H RAW Art 42

A neutral state has the duty to prevent, by force if necessary, intrusions into its airspace by belligerent aircraft. If the neutral state cannot or does not prevent violations of its airspace by one belligerent, opposing belligerents are entitled to take appropriate measures including entry into the neutral airspace to attack the adversary. Such a decision, however, is a political rather than a military one and should only be taken at the governmental level.

H RAW Art 42 (1); SRM para 18

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Where a military aircraft is brought down or lands in the territory of a neutral state, the aircraft and its occupants will be interned by the neutral state until the conflict is over. The aircraft and its occupants will then be returned to their state.

H RAW Art 42 (2); SRM para 18

Combatant Status and Insignia

Military Aircraft

All aircraft used in armed conflict should be clearly marked with national insignia indicating that they are military aircraft. Those markings normally include both national colours and an emblem indicating the military character of the aircraft. In some cases, however, it may consist of only one mark as it is accepted in practice that the military aircraft of some countries carry accepted markings that are neither national colours or flags.

H RAW Art 3

A belligerent or joint command (such as NATO) may inform adverse parties of the emblem its military aircraft will bear (for example, IFOR). Occupants of properly identified aircraft are lawful combatants. Occupants of aircraft not so marked are not lawful combatants.

H RAW Art 3

Civil Aircraft

Civil aircraft and state aircraft that are not military aircraft (for example, police or customs aircraft) may not engage in hostilities even if their crew and/or their passengers are members of the armed forces.

H RAW Art 16

Lawful and Unlawful Tactics

Ruses

Ruses of war are measures taken to obtain advantage of the enemy by confusing or misleading them.

HIVR Art 24; AP l Art 37 (2)

Ruses of war are more formally defined as acts that are intended to mislead an adversary or to induce that adversary to act recklessly. Ruses must not infringe any rule of the LOAC. Ruses are lawful if they are not treacherous, perfidious

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and do not violate any express or tacit agreement. Examples of legitimate ruses include camouflage, decoys and fake radio signals.

AP l Art 37 (2)

Perfidy

It is prohibited to kill, injure or capture adversaries by resort to perfidy. Acts inviting the confidence of adversaries and leading them to believe that they are entitled to protection or are obliged to grant protection under the LOAC, with intent to betray that confidence, constitute perfidy. In other words, perfidy consists of committing a hostile act under the cover of a legal protection.

SRM para 111; AP l Art 37 (1)

The following are examples of perfidy if a hostile act is committed while:

a. feigning an intent to negotiate under a flag of truce or to surrender;

b. feigning incapacitation by wounds or sickness;

c. feigning civilian, non-combatant status; or

d. feigning protected status by the use of signs, emblems or uniforms of the United Nations or of neutral or other states not parties to the conflict.

AP l Art 37 (1)

The following are examples of perfidy in air warfare if a hostile act is committed while:

a. using false markings on military aircraft such as the markings of civil aircraft, medical aircraft, United Nations aircraft or enemy aircraft; and

b. feigning surrender of an aircraft and then firing on an unsuspecting adversary after such surrender was accepted.

HRAW Art 19; AP I Art 37 (1) (a)

It is not unlawful to use captured enemy aircraft. However, the enemy’s markings must be removed.

AP I Art 39 (2); SRM para 110

Quarter/Surrender

It is prohibited to deny quarter. In other words it is unlawful to order, imply or encourage that no prisoners are to be taken; to threaten an adverse party that

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such an order will be given; or to conduct hostilities on the basis that no prisoners will be taken.

HlVR Art 23 (d); AP l Art 40; AP II Art 4 (1)

It is prohibited to attack a combatant who is, or should be recognized as being, hors de combat (out of combat).

AP l Art 41 (1)

A combatant is hors de combat when that person:

a. is in the power of an adverse party (that is, a prisoner);

b. clearly expresses an intention to surrender; or

c. has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of self-defence; provided that in any of these cases such combatant abstains from any hostile act and does not attempt to escape.

AP l Art 41 (2)

Surrenders in air combat are not generally offered. Nevertheless, surrenders by aircraft have been made on occasion. Surrender when offered in good faith must be respected. Surrenders by defecting enemy aircrew of military aircraft offer intelligence and psychological operations opportunities.

Disabled enemy aircraft in air combat are frequently pursued to destruction because of the impossibility of verifying their true status and inability to enforce surrender (that is, to take the enemy into your power or control). Although disabled, an aircraft may or may not have lost its means of combat. Moreover, it still may represent a valuable military asset. If an aircraft is clearly in distress, the attack may be broken off to permit possible evacuation by crew or passengers.

Aircraft may not open fire on any personnel who have indicated an intention to surrender, provided they can be taken into your power or effective control. This applies to ships as well as land forces. Nor may they fire upon shipwrecked personnel, including those who may have parachuted into the sea or otherwise come from downed aircraft, unless they carry out acts inconsistent with their status as “hors de combat.”

HIVR Art 23 (c); GII Art 12(1); AP I Art 42 (2)

Starvation of the Civilian Population

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Starvation of civilians as a method of warfare is prohibited. Therefore, it is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population whatever the motive.

AP l Art 54 (1) & (2); AP II Art 14

Protection of the Environment

Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare, which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.

AP l Art 55 (1)

In addition, Canada as a party to the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD) has undertaken not to engage in any military or hostile use of environmental modification techniques as the means of destruction, damage or injury to any other state, which is party to the Convention.

1976 Convention on the Prohibition of Military or any Hostile use of Environmental Modification Techniques Art 1 (1)

Environmental modification techniques are defined by the ENMOD Convention as any technique for changing, through the deliberate manipulation of natural processes, the dynamics, composition or structure of the earth, which would have widespread, long-term or severe effects.

1976 Convention on the Prohibition of Military or any Hostile use of Environmental Modification Techniques Art 2

Psychological Operations

The use of military aircraft for the purpose of disseminating propaganda from the air is well established in aerial warfare. Dissemination of propaganda by military aircraft includes dropping of leaflets, air to ground broadcasts and the like.

Propaganda for the purposes of inducing enemy combatants to rebel, desert, or surrender is not prohibited. Inducements may take the form of monetary rewards. Although the LOAC sanctions the use of military aircraft and aircrews to deliver propaganda, not all forms of propaganda are lawful. Propaganda which would incite illegal acts of warfare, as for example killing civilians, killing or wounding by treachery or the use of poison or poisonous weapons, is prohibited.

H RAW Art 21

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Air to Air Operations

General

Enemy military aircraft may be attacked and destroyed in any airspace other than neutral airspace. Enemy military aircraft may be captured anywhere other than in neutral jurisdiction. Ownership passes to the captor's government by virtue of the capture. The possibility, in modern warfare, of effecting capture in air to air combat does not, however, appear to be a realistic one.

SRM Art 16 (a)

A military aircraft is always a legitimate target in armed conflict unless it is entitled to protection as a medical aircraft or to specific protection by agreement between the parties concerning non-hostile uses such as negotiations to conclude hostilities, cease fire, surrender, exchange of prisoners or the exchange of official communications. In all such circumstances, the agreement should include appropriate markings and other means of identification. In the absence of entitlement to protection the status of personnel on board a military aircraft is irrelevant; their individual status is subsumed to the military character of the aircraft until such time as they leave it.

SRM para 55

All reasonable precautions should be taken during the conduct of military operations in the air to avoid losses of civilian lives and damage to civilian objects.

AP I Art 48

Parachutists and Downed Aircrew

Aircrew descending by parachute from a disabled aircraft are immune from attack. If such personnel land in enemy territory they must be given an opportunity to surrender before being made the object of an attack, unless it is apparent that they are engaging in some hostile act.

AP l Art 42 (1) & (2)

If personnel from a disabled aircraft do not surrender on being called upon to do so, they may be attacked in the same way as any other combatant. If a member of the crew of a disabled aircraft lands by parachute in territory occupied by his own forces or under the control of his own national authority, he may be attacked by the enemy in the same way as any other combatant, unless he is hors de combat (out of combat), in which case he is protected.

AP I Arts 42 & 43

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Paratroops and other airborne troops may be attacked even during their descent.

AP l Art 42 (3)

Search and Rescue Operations

It is permitted to attack members of the adverse party attempting to rescue aircrew who have crashed, unless such rescuers are protected as medical personnel attempting to rescue injured aircrew. In such cases, the aircrew and rescuers are protected in accordance with the Geneva Conventions.

AP I Art 12; SRM Art 53

Civil Aircraft

Civil aircraft (including state aircraft which are not military aircraft) in flight should not be attacked. They are presumed to be carrying civilians who may not be made the object of direct attack. If there is doubt as to the status of civil aircraft, it should be called upon to clarify that status. If it fails to do so, or is engaged in support of military activities, such as ferrying troops, it may be attacked. Civil aircraft should avoid entering areas that have been declared combat zones by the belligerents, since this increases the risk of their being attacked.

SRM paras 53, 56 & 63 & Part III Sect VI

Aircraft that have not been absorbed into a belligerent's air force and are being ferried from the manufacturer to a belligerent for this purpose may be attacked. Civilian crewmembers of a military aircraft, together with those responsible for ferrying aircraft intended for military use, become prisoners of war if captured by the adverse party.

GIV Art 4 (A) (4)

If a civil aircraft has been lawfully attacked, members of the crew become prisoners of war. Otherwise, any civilian passengers surviving the attack should be freed or held in accordance with the provisions of the Geneva Convention for the Protection of Civilians (GIV).

GIV Art 4; AP I Art 50 (1)

Civil aircraft on the ground may only be attacked in accordance with the normal rules relating to legitimate targets. However, since they may be used for transporting troops or supplies, their status will frequently depend upon the prevailing military situation. In addition, airfields are subject to attack, and incidental damage to civil aircraft on the ground does not render the attack unlawful.

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AP I Arts 51 (5) (b) & 52 (2)

Medical Aircraft

Medical aircraft, correctly identified and exclusively used as such, are immune from attack.

AP l Art 24

The parties to a conflict may, by agreement, confer immunity from attack upon specific aircraft. Such aircraft remain protected so long as they take no part in hostilities and rigorously respect the conditions laid down in the agreement.

AP I Art 26 - 29; SRM paras 54, 55 & 177

Air to Land Operations

Basic Attack Rules

The civilian population as a whole, as well as individual civilians, shall not be the object of attack. Civilians shall enjoy this protection unless and for such time as they take a direct part in hostilities.

AP l Art 51 (2) & (3)

Air to land operations must be conducted in accordance with the principle of proportionality. This implies that collateral civilian damage must never be excessive in relation to the concrete and direct military advantage anticipated.

AP l Art 51 (5) (b)

Indiscriminate attacks, as defined in the section on targeting are prohibited.

AP l Art 51 (4)

When a choice is possible between several legitimate targets for obtaining a similar military advantage, the target to be selected shall be the one where the attack may be expected to cause the least danger to civilian lives and to civilian objects.

AP l Art 57 (3)

An attack shall be cancelled or suspended if it becomes apparent that the objective is not a legitimate target or is subject to special protection, or that the attack may be expected to cause collateral civilian damage, which would be excessive in relation to the concrete and direct military advantage anticipated.

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AP l Art 57 (2) (b)

Air to Sea Operations

Enemy Warships and Naval Auxiliaries

Enemy warships and naval or military auxiliaries may be attacked or captured outside neutral jurisdiction.

Enemy Merchant Vessels

Enemy merchant vessels may be captured outside neutral jurisdiction. Enemy merchant vessels become legitimate targets and may be attacked if they:

a. engage in belligerent acts on behalf of the enemy (for example, laying mines, minesweeping, cutting undersea cables and pipelines, engaging in visit and search of neutral merchant vessels or attacking other merchant vessels);

b. act as an auxiliary to an enemy's armed forces (for example, carrying troops or replenishing warships);

c. are incorporated into or assisting the enemy’s intelligence gathering system (for example, engaging in reconnaissance, early warning, surveillance, or command, control and communications missions);

d. sail under convoy of enemy warships or military aircraft;

e. refuse an order to stop or actively resist visit, search or capture;

f. are armed to an extent that they could inflict damage to a warship (this excludes light individual weapons for the defence of personnel and purely deflective systems such as “chaff”; or

g. otherwise making an effective contribution to military action.

SRM paras 59 & 60

Enemy merchant vessels may be attacked and destroyed if they are incorporated into the belligerent war effort. A decision concerning whether or not enemy merchant vessels may be generally deemed to be incorporated into the belligerent war effort will be made at the governmental level. Indicators that all enemy merchant shipping is incorporated into the belligerent war effort include:

a. state control over merchant shipping to ensure that only items essential to the war effort are imported or exported;

b. general use of convoys;

c. general integration of merchant vessels into intelligence networks by, for example, requiring reports of sighting of all enemy vessels or aircraft;

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d. standing instructions to resist submarines by ramming; and

e. arming of merchant vessels.

If practicable, enemy merchant vessels should be warned prior to the commencement of an attack.

AP I Art 57 (2) (c)

Neutral Merchant Vessels

Neutral merchant vessels are subject to capture outside neutral waters if they:

a. are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture;

b. engage in belligerent acts on behalf of the enemy;

c. act as auxiliaries to the enemy’s armed forces;

d. are incorporated into or assist the enemy’s intelligence system;

e. sail under convoy of enemy warships or military aircraft; or

f. otherwise make an effective contribution to the enemy’s military action.

SRM para 67

Neutral merchant vessels may also be captured if it is determined as a result of visit and search or by other means, that they:

a. are carrying contraband;

b. are on a voyage especially undertaken with a view to the transport of individual passengers who are embodied in the armed forces of the enemy;

c. are operating directly under enemy control, orders, charter, employment or direction;

d. present irregular or fraudulent documents, lack necessary documents, or destroy, deface or conceal documents;

e. are violating regulations established by a belligerent within the immediate area of naval operations; or

f. are breaching or attempting to breach a blockade.

SRM para 146

Neutral merchant vessels become legitimate targets and may be attacked if they:

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a. are believed on reasonable grounds to be carrying contraband or breaching a blockade, and after prior warning they intentionally and clearly refuse to stop, or intentionally and clearly resist visit, search or capture;

b. engage in belligerent acts on behalf on the enemy;

c. act as auxiliaries to the enemy’s armed forces;

d. are incorporated into or assist the enemy’s intelligence system;

e. sail under convoy of enemy warships or military aircraft; or

f. otherwise make an effective contribution to the enemy’s military action.

SRM para 67

If practicable, neutral merchant vessels should be warned prior to the commencement of an attack.

SRM para 67

Enemy Vessels Exempt from Attack

The following enemy vessels are protected and may not be attacked:

a. hospital ships;

b. small craft used for coastal rescue operations and other medical transports;

c. vessels granted safe conduct by agreement between the belligerent parties (for example, vessels transporting PWs or engaged in humanitarian missions);

d. vessels engaged in transporting cultural property under special protection;

e. passenger vessels carrying only civilian passengers;

f. vessels charged with religious, non-military scientific or philanthropic missions;

g. small coastal fishing vessels and small boats engaged in local coastal trade, but they are subject to the regulations of a belligerent naval commander operating in the area and to inspection;

h. vessels which have surrendered; and

i. life rafts and life boats.

SRM para 47

Conditions of Protection

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The vessels listed in paragraph 60 are protected and exempt from attack only if they:

a. are innocently employed in their normal role;

b. submit to identification and inspection when required; and

c. do not intentionally hamper the movement of combatants and obey orders to stop or move out of the way when required.

SRM para 48

Loss of Protection by Hospital Ships

A hospital ship loses its protection from attack if it violates any of the three conditions. However, a hospital ship’s protection is lost only after due warning has been given with a reasonable time limit to terminate the violation, and such warning has remained unheeded.

SRM para 49

A hospital ship that persists, after a warning, in violating a condition of its protection renders itself liable to capture or other necessary measures to enforce compliance.

SRM para 50

Attack Against a Hospital Ship

A hospital ship may only be attacked as a last resort if:

a. diversion or capture is not feasible;

b. no other method is available for exercising military control;

c. the circumstances of non-compliance are sufficiently grave that the hospital ship has become, or may be reasonably assumed to be, a legitimate target; and

d. the collateral casualties or damage will not be disproportionate to the military advantage gained or expected.

SRM para 51

Attack Against other Protected Vessels

If any other protected vessel breaches the conditions in paragraph 61, it may be attacked only if:

a. diversion or capture is not feasible;

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b. no other method is available for exercising military control;

c. the circumstances of non-compliance are sufficiently grave that the vessel has become, or may be reasonably assumed to be, a legitimate target; and

d. the collateral casualties or damage will not be disproportionate to the military advantage gained or expected.

SRM para 52

Introduction Module 4

This module summarizes LOAC rules concerning targeting. The LOAC has developed a number of principles to ensure that military forces select objectives that are legitimate targets. The term “targeting” is often understood to designate the operational process through which a commander plans a deliberate attack. This module will teach you that the rules that govern targeting activities are much broader than that. It includes the precautions taken by prudent leaders and followers during the planning and execution of military operations, for both deliberate and hasty prosecution of targets.

These concepts will be expanded and deepened in class. You will have the opportunity to participate in a targeting exercise that will validate the notions taught in this module.

Key Concepts

Distinction Principle

To ensure respect for and protection of the civilian population and civilian objects, commanders shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives.

AP l Arts 48, 51, 52 & 57; AP II Arts 13

Basic Rule

Military operations shall be directed only against legitimate targets. Military operations directed against such targets must also meet the requirement of proportionality discussed below.

AP l Art 48, 51 (5) (b) & 57 (2) (a)

Legitimate Targets

Scope

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This section defines “legitimate targets” and provides examples of objects and personnel that are legitimate targets.

Definition of Legitimate Targets

“Legitimate targets” include combatants, unlawful combatants and military objectives.

AP I Arts 43 (2), 46, 47, 51 (3) & 52 (2)

“Military objectives” are objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offer a definite military advantage. A specific area of land may constitute a military objective.

AP l Art 52 (2)

Example of Objects which are Military Objectives

The following are generally accepted as being military objectives:

a. military bases, warehouses, petroleum storage areas, ports and airfields; and

b. military aircraft, weapons, ammunition, buildings and objects that provide administrative and logistical support for military operations.

Civilian vessels, aircraft, vehicles and buildings are military objectives if they contain combatants, military equipment or supplies.

AP l Art 52 (2)

The following objects, depending on the circumstances, may constitute military objectives:

a. transportation systems for military supplies;

b. transportation centres where lines of communication converge;

c. rail yards;

d. industrial installations producing material for armed forces;

e. conventional power plants; and

f. fuel dumps.

Combatants

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Combatants are legitimate targets and may be attacked unless they have been captured, surrendered, expressed a clear intention to surrender, or are hors de combat (i.e., out of combat), provided they refrain from hostile acts and do not attempt to escape. This concept will be extensively covered in the next module.

HIVR Art 23 (c); AP l Arts 41 (1) & (2) & 43 (2)

Airborne Troops

Airborne troops are combatants and therefore legitimate targets. They may be attacked during their descent by parachute from aircraft.

AP l Art 42 (3)

Unlawful Combatants

Unlawful combatants are legitimate targets for such time as they take a direct part in hostilities. Unlawful combatants include:

a. civilians (except those who are lawful combatants because they are participating in levée en masse);

b. mercenaries; and

c. spies.

HIVR Art 2; AP l Arts 46, 47, 51 (3); AP ll Art 13 (3)

Targeting Principles and Definitions

Protection of Civilians and Civilian Objects

The protection of civilians and civilian objects is a fundamental principle of the LOAC. Parties to a conflict have a duty to distinguish between civilians and combatants as well as between civilian objects and military objectives. Civilians are entitled to protection from the dangers arising from military operations. In conducting operations care should always be taken to spare civilians and civilian objects.

AP l Arts 48, 51 - 58; AP II Arts 13 - 15

Definition of "Attack"

For the purposes of the LOAC, the term “attack” has a broad meaning. An “attack” is defined as an act of violence against the adversary, whether in offence or defence. Therefore, the term “attack” includes acts of violence against an adversary in not only offensive military operations but also in purely defensive military operations.

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AP l Art 49 (1)

Proportionality

The fact that an attack on a legitimate target may cause civilian casualties or damage to civilian objects does not necessarily make the attack unlawful under the LOAC. However, such collateral civilian damage must not be disproportionate to the concrete and direct military advantage anticipated from the attack.

AP l Art 51 (5) (b)

The proportionality test is as follows: Is the attack expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof (“collateral civilian damage”), which would be excessive in relation to the concrete and direct military advantage anticipated? If the answer is “yes”, the attack must be cancelled or suspended. The proportionality test must be used in the selection of any target.

AP l Art 57 (2) (a) (iii)

Proportionality and Multiple Targets

Where a choice is possible between several legitimate targets for obtaining a similar military advantage, the target to be selected shall be the one on which an attack would be expected to cause the least civilian casualties and damage to civilian objects.

AP l Art 57 (3)

Concrete and Direct Military Advantage

The military advantage at the time of the attack is that advantage anticipated from the military campaign or operation of which the attack is part, considered as a whole, and not only from isolated or particular parts of that campaign or operation.

Reservation made by Canada at the time of ratification of AP I regarding Arts 51 (5) (b), 52 (2) & 57 (2) (a) (iii)

A concrete and direct military advantage exists if the commander has an honest and reasonable expectation that the attack will make a relevant contribution to the success of the overall operation. Military advantage may include a variety of considerations including the security of the attacking forces.

Indiscriminate Attacks

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Indiscriminate attacks are those that may strike legitimate targets and civilians or civilian objects without distinction. They are prohibited. Indiscriminate attacks are:

a. those which are not directed at a specific legitimate target;

b. those which employ a method or means of combat which cannot be directed at a specific legitimate target; or those which employ a method or means of combat, the effects of which cannot be limited as required by the LOAC.

AP l Art 51 (4)

The following are examples of indiscriminate attacks:

a. an attack by bombardment by any methods or means which treats as a single legitimate target a number of clearly separated and distinct legitimate targets located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and

b. an attack which does not meet the requirements of proportionality.

AP l Art 51 (5)

Obligations Related to Targeting

Military Commanders, Planners and Staff Officers

Under the LOAC commanders, planners and staff officers have the following obligations:

a. to do everything feasible to verify that the objectives to be attacked are in fact legitimate targets and are not entitled to special protection under the LOAC;

b. to take all feasible precautions in the choice of means and methods of attack to avoid, and in any event to minimize, collateral civilian damage; and

c. to refrain from launching any attack which may be expected to cause collateral civilian damage which would be excessive in relation to the concrete and direct military advantage anticipated (proportionality test).

AP l Art 57 (2) (a)

Standard of Care

Commanders, planners and staff officers will not be held to a standard of perfection in reaching their decisions.

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Reservation made by Canada at the time of ratification of AP I in relation to Arts 48, 51 to 60 inclusive, 62 & 67

Commanders, planners and staff officers are required to take all “feasible” steps to verify that potential targets are legitimate targets. However, such decisions will be based on the “circumstances ruling at the time”. Consideration must be paid to the honest judgement of responsible commanders, based on the information reasonably available to them at the relevant time, taking fully into account the urgent and difficult circumstances under which such judgements are usually made.

AP l Art 57 (2) (a) (i) & Reservation made by Canada at the time of ratification in relation to Arts 41, 56, 57, 58, 78 & 86

The test for determining whether the required standard of care has been met is an objective one: Did the commander, planner or staff officer do what a reasonable person would have done in the circumstances?

Cancellation or Suspension of an Attack

An attack must be cancelled or suspended if it becomes apparent that the objective is not a legitimate target, or that the attack may be expected to cause collateral civilian damage, which would be excessive in relation to the concrete and direct military advantage anticipated.

AP l Art 57 (2) (b)

Warning

An effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit such a warning to be given. For tactical reasons, an attacking force may not give a warning in order to maintain the element of surprise.

HIVR Art 26; HIX Art 6; AP l Art 57 (2) (c)

Obligation to Protect Civilians Against the Effects of Attacks

To protect civilians, the parties to a conflict shall, to the maximum extent feasible:

a. endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of legitimate targets;

b. avoid locating legitimate targets within or near densely populated areas; and

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c. take other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations.

AP l Art 58

Civilians and Civilian Objects

Scope

This section describes the protection to which civilians and civilian objects are entitled.

General Rule

As a general rule, civilians and civilian objects shall not be attacked. Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population, are prohibited.

AP l Art 51 (2); AP ll Art 13 (2)

Definition of "Civilian"

In general, a “civilian” is any person who is not a combatant. For a complete discussion of persons considered to be “combatants”.

AP l Art 50 (1)

Civilians who Accompany the Armed Forces

For targeting purposes, the presence of civilians who are authorized to accompany the armed forces without actually being members thereof (such as crews of military aircraft, war correspondents, supply contractors or members of services responsible for the welfare of the armed forces) does not render a legitimate target immune from attack. Such persons run the risk of being attacked as part of a legitimate target.

AP I Art 51 (7)

Civilian Population

The civilian population comprises all persons who are civilians. The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.

AP l Art 50 (2) & (3)

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Definition of "Civilian Object"

Under the LOAC, a “civilian object” is any object, which is not a “military objective”.

AP l Art 52 (1)

Civilian Object used for Military Purposes

Where a civilian object is used for military purposes, it loses its protection as a civilian object and may become a legitimate target.

AP l Art 52 (2)

Cases of Doubt

In case of doubt whether a person is a civilian, that person shall be considered to be a civilian. In the case of doubt as to whether an object which is normally dedicated to civilian purposes (such as a place of worship, a house or other dwelling, or a school) is being used to make an effective contribution to military action, it shall be presumed not to be so used.

AP l Arts 50 (1) & 52 (3)

Prohibited on Reprisals

Reprisals against civilians and civilian objects are prohibited.

GIV Art 33 (3); AP l Art 51 (6) & 52 (1)

Other Persons Entitled to Protection

Scope

This section sets out the various classes of persons that are entitled to special protection from attack under the LOAC.

Medical and Religious Personnel

Medical and religious personnel, both military and civilian, have protected status and thus shall not be attacked. These persons wear the Red Cross or Red Crescent and carry identity cards which identify them as protected persons.

Gl Art 24; GII Art 36, 42; GIV Art 20 (1) & (3); AP l Art 15 (1) & (5), 18 (1) & (3), Anx I As Amended 30 Nov 93 Arts 1 - 5; AP ll Art 9 (1)

Enemy "Hors de Combat"

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A combatant who is recognized or who, in the circumstances, should be recognized to be hors de combat (out of combat) shall not be attacked.

HIVR Art 23 (c); AP l Arts 41 (1) & 85 (3) (e)

A combatant is hors de combat if that person:

a. is in the power of an adverse party (PW);

b. clearly expresses an intention to surrender; or

c. has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and is therefore incapable of defending himself; provided that in any of these cases the combatant abstains from any hostile act and does not attempt to escape.

AP l Art 41 (2)

It is prohibited to order that there shall be no survivors or to conduct hostilities on that basis. Hence, a person who clearly shows an intent to surrender by whatever means shall not be attacked.

HlVR Art 23 (d); AP I Art 40; AP ll Art 4 (1)

Personnel Bearing the White Flag

Personnel bearing a white flag are indicating a desire to negotiate or surrender. They should not be attacked but should be dealt with cautiously.

HIVR Art 32; AP I Art 41 (2) (b)

Wounded, Sick and Shipwrecked

All the wounded, sick and shipwrecked, to whichever party they belong, shall be respected and protected and shall not be attacked.

G l Art 12 (1); Gll Art 12 (1); AP l Arts 10 (1) & 41 (1) & (2) (c); AP ll Art 7 (1)

The “wounded” and “sick” mean persons, whether military or civilian who, because of trauma, disease or other physical or mental disorder or disability, are in need of medical assistance or care. The wounded and sick are protected so long as they refrain from any act of hostility.

AP l Art 8 (1)

“Shipwrecked” means persons, whether military or civilian, who are in peril at sea or in other waters as a result of misfortune affecting them or the vessel or aircraft

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carrying them. The shipwrecked are protected so long as they refrain from any act of hostility.

AP l Art 8 (2)

Prisoners of War

PWs must be protected and shall not be attacked so long as they refrain from any hostile act and do not attempt to escape.

AP l Art 41 (1) & (2)

Parachutists from Aircraft in Distress

No person parachuting from an aircraft in distress shall be made the object of attack during descent.

AP l Art 42 (1)

Upon reaching the ground in territory controlled by an adverse party, a person who has parachuted from an aircraft in distress shall be given an opportunity to surrender before being made the object of attack, unless it is apparent that that person is engaging in a hostile act.

AP l Art 42 (2)

Airborne troops are not entitled to this protection and may be attacked during their descent by parachute.

AP l Art 42 (3)

Humanitarian and Societies

Humanitarian aid societies, such as the Red Cross or Red Crescent Societies, who on their own initiative, collect and care for the wounded, sick and shipwrecked, even in invaded or occupied areas, shall not be made the object of attack.

GI Art 18 (2) & (3) & 26 (1); GII Art 24 (1); AP l Art 17 (1)

Personnel Participating in Relief Actions

Personnel participating in relief actions shall not be made the object of attack.

GI Art 18 (2) & (3); AP l Art 17 (1)

Civil Defence Personnel

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Civil defence organizations and their personnel are protected and shall not be attacked.

AP l Art 62 (1)

Civil defence personnel are assigned to the performance of civil defence tasks and include those assigned to the administration of civil defence organizations.

AP l Art 61 (3)

“Civil defence” means the performance of some or all of the humanitarian tasks intended to protect the civilian population against the dangers of hostilities or disasters, to help the civilian population recover from the immediate effects of such hostilities or disasters, and to provide the conditions necessary for the civilian population’s survival. Civil defence tasks include:

a. warning;

b. evacuation;

c. management of shelters;

d. management of blackout measures;

e. rescue;

f. medical services including first aid and religious assistance;

g. fire-fighting;

h. detection and marking of danger areas;

i. decontamination and similar protective measures;

j. provision of emergency accommodation and supplies;

k. emergency assistance in the restoration and maintenance of order in distressed areas;

l. emergency repair of indispensable public utilities;

m. emergency disposal of the dead;

n. assistance in the preservation of objects essential for survival; and

o. complementary activities necessary to carry out any of the above-mentioned tasks including planning and organization.

AP l Art 61 (1)

Civil defence personnel wear the civil defence emblem consisting of a blue triangle on an orange background and carry an identity card certifying their status.

AP l Art 66 (3) & (4), Anx l As Amended 30 Nov 93 Arts 15 & 16

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The protection to which civil defence personnel are entitled ceases where they commit or are used to commit, outside their proper tasks, acts harmful to the enemy. However, protection ceases only after a warning has been given and after such warning has remained unheeded.

AP l Art 65 (1)

The following do not constitute “acts harmful to the enemy”:

a. that civil defence tasks are carried out under the direction or control of military authorities;

b. that civilian civil defence personnel cooperate with military personnel in the performance of civil defence tasks;

c. that some military personnel are attached to civil defence organizations;

d. that the performance of civil defence tasks may incidentally benefit military victims, particularly those who are hors de combat;

e. that civilian civil defence personnel are armed with light individual weapons (usually handguns to distinguish them from combatants) for maintaining order or for self-defence; or

f. that civilian civil defence organizations have been formed along military lines, and service in them is compulsory.

AP l Art 65 (2) - (4)

Journalists Engaged in Dangerous Professional Missions

Journalists engaged in dangerous professional missions in areas of armed conflict shall be considered as civilians and are entitled to the protection accorded to civilians under the LOAC, provided they take no action adversely affecting their status as civilians. Such journalists must possess identity cards that attest to their status as journalists.

AP l Art 79 & Anx ll

Objects Entitled to Protection

Scope

This section describes a number of objects that are entitled to protection from attack under the LOAC.

Cultural Objects

The following actions are prohibited:

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a. to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples; or

b. to use such objects in support of the military effort.

HlVR Art 27 (1); HIX Art 5 (1); H Cultural Property Convention Art 4 (1); AP l Arts 53 (a) & (b) & 85 (4) (d); AP ll Art 16

Care must be taken to avoid locating military personnel and material in or near protected cultural objects and places of worship.

H Cultural Property Convention Art 4 (1); AP I Art 53 (b)

Cultural objects and places of worship should be marked with the international sign. However, the absence of such a sign does not deprive such objects of protection.

HlVR Art 27 (2); H Cultural Property Convention Arts 16 & 17; HR for Execution of Cultural Property Convention Art 20

Not all cultural objects and places of worship are protected as cultural or religious property by the LOAC. Only those cultural objects and places of worship, which constitute the “cultural or spiritual heritage of peoples”, are so protected. Therefore, a small village church may not be protected by the cultural protection provisions of the LOAC, but a major cathedral (for example, Vatican) is likely entitled to protection. However, the fact that an object is not a cultural object does not mean that it is not a “civilian object.” It would be entitled to protection under that status.

AP l Arts 52(1) & 53 (a)

It is recognized that it may be difficult to distinguish between cultural objects and places of worship which are protected and those which are not protected. However, cultural objects and places of worship which are not protected nevertheless remain civilian objects and are protected as such.

AP l Arts 52(1)

Cultural objects and places of worship being used by the adverse party in support of its military effort may become legitimate targets.

HlVR Art 27 (1); H Cultural Property Convention Art 4 (2); AP l Art 52(2)

Whether you attack cultural objects and places of worship which have become legitimate targets will depend on your mission. If so, the principle of proportionality is particularly important, as the location or object should not be damaged any more than what the mission requires.

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AP l Arts 51 (5) (b) & 52 (2)

Where possible, the opposing force should be warned to stop using a cultural object or place of worship for military purposes before an attack is launched.

AP l Art 57 (2) (c)

Reprisals against cultural objects and places of worship are forbidden.

AP l Art 53 (c)

Dams, Dykes and Nuclear Power Plants

Raid on the Möhne Dam, 17 May 1943

Dams, dykes and nuclear electrical generating stations shall not be attacked, even where they are legitimate targets, if such an attack might cause the release of dangerous forces and consequent severe losses among the civilian population.

AP l Art 56 (1); AP ll Art 15

Other legitimate targets located at or near dams, dykes and nuclear electrical generating stations shall not be attacked if such an attack may cause the release of dangerous forces from those works or installations and consequent severe losses among the civilian population.

AP l Art 56 (1); AP ll Art 15

The protection that the LOAC provides to dams, dykes, nuclear electrical generating stations, and other legitimate targets near those

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Möhne dam rebuilt

installations is not absolute. The protection ceases in the following circumstances:

a. for a dam or dyke, only if it is used for other than its normal function and in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support;

b. for a nuclear electrical generating station, only if it provides electric power in regular, significant and direct support of military operations and only if such attack is the only feasible way to terminate such support; and

c. for other legitimate targets located at or in the vicinity of these works or installations, only if they are used in regular, significant and direct support of military operations and if such attack is the only feasible way to terminate such support.

AP l Art 56 (2)

The parties to a conflict should avoid locating legitimate targets near dams, dykes and nuclear electrical generation stations. Weapons co-located for the sole purpose of defending such installations are permissible.

AP l Art 56 (5)

Dams, dykes and nuclear electrical generating stations should be marked with a special sign consisting of three bright orange circles on the same axis. Even if

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they are not marked with the special sign, they are still entitled to all the protections described above.

AP l Art 56 (7), Anx l As Amended 30 Nov 93 Art 17

No reprisals may be taken against dams, dykes, nuclear electrical generating stations, or legitimate targets located at or near such installations.

AP l Art 56 (4)

Objects Indispensable to the Survival of the Civilian Population

It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population for whatever motive.

AP l Art 54 (2)

The following are examples of “objects indispensable to the survival of the civilian population”:

a. foodstuffs;

b. agricultural areas for the production of foodstuffs;

c. crops;

d. livestock;

e. drinking water installations and supplies; and

f. irrigation works.

AP I Art 54 (2)

Objects indispensable to the survival of the civilian population may be attacked if they are used by an adverse party:

a. as sustenance solely for the member of its armed forces; or

b. in direct support of military action, provided that actions against these objects do not leave the civilian population with such inadequate food or water so as to cause its starvation or force its movement.

AP l Art 54 (3)

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Objects indispensable to the survival of the civilian population shall not be made subject to reprisals.

AP l Art 54 (4)

Where a party to a conflict is defending its national territory against invasion, it may attack objects indispensable to the survival of the civilian population if:

a. the objects are within national territory of and under the control of the party; and

b. an attack on the objects is required by imperative military necessity.

AP l Art 54 (5)

Natural Environment

Care shall be taken in an armed conflict to protect the natural environment against widespread, long term and severe damage.

AP l Arts 35 (3) & 55 (1)

Attacks, which are intended or may be expected to cause damage to the natural environment, which prejudices the health or survival of the population, are prohibited.

AP l Art 55 (1)

Attacks against the natural environment by way of reprisals are prohibited.

AP l Art 55 (2)

It is prohibited to make forests or other kinds of plant cover the object of attack by incendiary weapons except when such natural elements are used to cover, conceal or camouflage combatants or other military objectives, or are themselves military objectives.

G P III Art 2 (4)

Medical Units and Establishments

Medical units and establishments shall be respected, protected and shall not be made the object of attack.

GI Art 19 (1); GII Arts 22 (1), 23 & 24; GIV Arts 18 (1); AP l Art 12 (1) & (2); AP ll Art 11 (1)

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“Medical units” means establishments and other units, whether military or civilian, organized for medical duties. The term “medical units” is intended to have a broad meaning and includes:

a. hospitals and other similar units;

b. blood transfusion centres;

c. preventive medicine centres and institutes;

d. medical depots; and

e. the medical and pharmaceutical stores of such units.

AP l Art 8 (5)

Medical units may be fixed or mobile, permanent or temporary.

AP l Art 8 (5)

The protection to which medical units are entitled shall not cease unless they are used to commit, outside their humanitarian function, acts harmful to the enemy. Protection may only cease, however, after a warning has been given and after such warning has remained unheeded.

GI Art 21; AP l Art 13 (1); AP ll Art 11 (2)

The following are not considered “acts harmful to the enemy” and do not deprive medical units of protection:

a. that the personnel of the medical unit are armed for their own defence or that of the wounded and sick in their charge;

b. that the medical unit is protected by a picket, sentries or escort;

c. that small arms and ammunition taken from the wounded and sick, and not yet handed to the proper service, are found in the medical unit;

d. that personnel and material of the military veterinary service are found in the medical unit, without forming an integral part thereof; and

e. that the humanitarian activities of medical units or of their personnel extend to the care of both civilian and military wounded and sick.

Gl Art 22; AP l Art 13 (2)

Medical Transports

Medical transports of all types (land, sea and air) are protected and must not be attacked.

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GI Art 35(1) & 36 (1); GII Arts 22, 25 & 39 (1); GIV Art 21 (1), 22 (1) & 56 (2); AP l Arts 21, 22 (2), 23 (1) & 24; AP ll Art 11 (1)

Medical transports should not be armed (i.e., crew-served weapons) because of the danger that they may be mistaken as fighting vehicles. Medical personnel in the medical transports can, however, retain their personal weapons.

GI Art 22 (1); GII Art 35 (1); AP l Arts 13 (2) (a) & 28 (3)

Vessels

The following vessels of an adverse party shall not be attacked:

a. hospital ships;

b. small craft used for coastal rescue operations and medical transports;

c. vessels granted safe conduct by agreement between parties to the conflict (e.g., vessels carrying PWs or humanitarian supplies);

d. vessels engaged in transporting cultural property under special protection;

e. passenger vessels when engaged only in carrying civilian passengers;

f. vessels charged with religious, non-military scientific or philanthropic missions;

g. small coastal fishing vessels and small boats engaged in local coastal trade;

h. vessels which have surrendered; and

i. life rafts and life boats.

SRM para 47

Civil Defence Buildings, Materiel and Shelters

Civil defence buildings and materiel, as well as shelters provided for the civilian population, are considered “civilian objects” and shall not be attacked or subjected to reprisals.

AP l Art 62 (3)

Civil defence materiel means equipment, supplies and transports used by civil defence organizations to perform civil defence tasks. Objects used for civil defence purposes may not be attacked.

AP l Arts 61 (4) & 62 (3)

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Civil defence buildings, materiel and shelters should be marked with a distinctive sign consisting of a blue triangle on an orange background.

AP l Art 66 & Anx l As Amended 30 Nov 93 Art 16

The protection to which civil defence buildings, materiel and shelters are entitled ceases where they are used to commit, outside their proper tasks, acts harmful to the enemy. However, protection ceases only after a warning has been given and after such warning has remained unheeded.

AP l Art 65 (1)

Prisoner of War Camps

PW camps shall not be attacked. Such camps will be marked with the letters “PW” or “PG” (Prisonnier de Guerre) which are clearly visible from the air.

Glll Art 23 (4)

The presence of PWs is not to be used to render certain points or areas immune from military operations.

Glll Art 23 (1)

Internment Camps

Civilians may be detained in places known as internment camps. Internment camps shall not be attacked. Such camps will be marked with the letters “IC” which are clearly visible from the air.

GlV 79 & 83 (3)

Areas Entitled to Protection

Scope

This section describes a number of areas that are entitled to protection from attack under the LOAC.

Hospital and Safety Zones

Hospital and safety zones can be established by parties to a conflict to protect the following persons from the effects of armed conflict:

a. wounded, sick and aged persons;

b. children under the age of fifteen;

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c. expectant mothers; and

d. mothers of children under the age of seven.

GI Art 23 (1); GlV Art 14 (1)

Such zones also protect those personnel responsible for organizing and administering the zones as well as those caring for the wounded and sick.

Gl Art 23 (1) & Anx l Art 1; GlV Anx l Art 1 (1)

Hospital zones should be located in sparsely populated areas away from legitimate targets. They shall be marked with a distinctive sign consisting of an oblique red band on a white background. Zones reserved exclusively for the wounded and sick may be marked by means of the Red Cross or the Red Crescent.

Gl Anx l Arts 4 & 6; GlV Anx l Arts 4 & 6

Hospital and safety zones are not to be attacked.

Gl Anx l Art 11; GlV Anx I Art 11

Neutralized Zones

Any party to a conflict may, either directly or through a neutral state or some humanitarian organization, propose to the adverse party to establish, in the regions where the fighting is taking place, neutralized zones intended to shelter from the effects of the conflict the following persons, without distinction:

a. wounded and sick combatants or non-combatants; and

b. civilian persons who take no part in hostilities and who, while they reside in the zones, perform no work of a military character.

GIV Art 15 (1)

So long as the adverse party complies with the terms of the agreement establishing the neutralized zone, it shall not be attacked.

GIV Art 15 (1)

Non-Defended Localities

It is prohibited for parties to a conflict to attack, by any means whatsoever, non-defended localities.

HIVR Art 25; HIX Arts 1 - 4; AP l Arts 59 (1) & 85 (3) (d)

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A party to a conflict may declare as a non-defended locality any inhabited place near or in a zone where armed forces are in contact. The non-defended locality is then open for occupation by the adverse party.

AP l Art 59 (2)

An non-defended locality must normally satisfy the following conditions:

a. all combatants, as well as mobile weapons and mobile military equipment, must have been evacuated;

b. no hostile use shall be made of fixed military installations or establishments;

c. no acts of hostility shall be committed by the authorities or by the population; and

d. no activities in support of military operations shall be undertaken.

AP l Art 59 (2)

However, the parties to a conflict may agree to the establishment of a non-defended locality even where these conditions are not all satisfied.

AP l Art 59 (5)

The party in control of a non-defended locality shall mark it, so far as possible, by such signs as may be agreed upon by the adverse parties. Such signs shall be displayed where they are clearly visible, especially on the non-defended locality’s perimeter and on highways.

AP l Art 59 (6)

An area loses its status as a non-defended locality when it ceases to fulfil the conditions described above or in an agreement between adverse parties to establish the non-defended locality.

AP l Art 59 (7)

Demilitarized Zone

It is prohibited for parties to a conflict to conduct military operations in or to attack an area that they have agreed to treat as a demilitarized zone.

AP l Art 60 (1)

A demilitarized zone must normally satisfy the following conditions:

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a. all combatants, as well as mobile weapons and mobile military equipment, must have been evacuated;

b. no hostile use shall be made of fixed military installations or establishments;

c. no acts of hostility shall be committed by the authorities or by the population; and

d. any activity linked to the military effort must have ceased.

AP l Art 60 (3)

The party in control of a demilitarized zone shall mark it, so far as possible, by such signs as may be agreed upon by the adverse parties. Such signs shall be displayed where they are clearly visible, especially on the demilitarized zone’s perimeter and on highways.

AP l Art 60 (5)

An area loses its status as a demilitarized zone where:

a. a party commits a violation of the conditions described above;

b. a party uses the demilitarized zone for purposes related to the conduct of military operations where it has agreed not to do so; or

c. a party unilaterally revokes the status of an area as a demilitarized zone where it has agreed not to do so.

AP l Art 60 (7)

Introduction to Module 5

This module covers the important and complex issues related to the detainees, the rules governing their status determination and the treatment that they shall receive according to their status.

The notions covered in this module will be expanded and deepened in class. Syndicate discussions and exercises will validate notions taught on this topic.

PWs and Detainees

During the course of CF operations, CF units and members have detained and will continue to detain individuals. Pursuant to CF doctrine, detainees are any persons who are non-consensually in the custody, care, and control of CF personnel.1 During CF domestic operations, detainees could include a variety of persons such as civilians committing a breach of the peace during CF assistance to Canadian law enforcement authorities. During international operations

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detainees could include: local civilians who interfere with the mission, petty criminals, international criminals, prisoners of war (PW) or other persons who have taken part in hostilities against CF or other Allied/Coalition forces, such as unlawful combatants.2

The treatment and handling of detainees is one of the most important aspects of any mission. The standards a nation sets for the treatment of those whom it detains is often a benchmark of that nation’s culture and humanity, on display for all to see. Also, for operational commanders, it is imperative to have a clear understanding of detainee issues properly to plan and successfully to execute the overall military mission. Often the success of a mission is measured by the way in which military forces deal with detainees.3 Accordingly, the focus of this section is on key legal issues arising from the detention of persons during CF international operations.

Armed Conflict Operations

International Armed Conflict

The LOAC is the primary body of law that defines a state’s obligations towards detainees during armed conflict.4 The precise treatment accorded detainees during international armed conflicts is determined by their legal status but all detainees, whatever their status, are entitled, as a minimum, to a basic level of humane treatment.5 Under the LOAC relating to international armed conflicts, there are two basic categories of persons: combatants and civilians.

Combatant Status

Soviet fighter in Afghanistan

Lawful combatants are entitled to participate in hostilities. They have “combat immunity” which is, in effect, a license to kill, wound or capture enemy combatants and to destroy military objectives.6 Such acts would be serious criminal offences under normal peacetime laws but during an armed conflict they are lawful. The LOAC provides a legal shield to the lawful combatant.7 If captured by the enemy, a lawful combatant cannot be tried for participating in hostilities, for killing enemy combatants, causing the deaths of civilians (killed unintentionally during attacks on lawful targets) or for destroying enemy property. Similarly, a lawful combatant may not be tried by his/her own state or another state for committing lawful acts of combatancy.

Once captured, lawful combatants are entitled to prisoner-of-war (PW) status and benefit from the protection of the Third Geneva Convention (GC III), which is reflective of customary international LOAC. Article 4 of GC III delineates the conditions for PW status. In conflicts to which Additional Protocol 1 to the

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Geneva Conventions (AP 1) applies, those conditions have been relaxed by Art 44. However, Article 44 is not regarded as declaratory of customary law.8 This could be important in conflicts where AP I does not apply as a matter of treaty law (such as the fighting in Afghanistan in 2002). There are two particularly important aspects of being a PW. First, the person is generally only subject to the laws, regulations and orders in effect for the armed forces of the Detaining Power. Second, the person may only be tried by the same courts and under the same procedures applicable to those armed forces.9

Civilian Status

AP I represents the first attempt to codify and define the term “civilian” under the LOAC. Article 50 of AP I indicates that a “civilian” is any person who does not belong to one of the categories of persons referred to in Article 4A (1), (2), (3) and (6) of GC III and Article 43 of AP I.10 Essentially, this means a civilian is anyone who is not a combatant.

Civilians, other than those who take up arms spontaneously as combatants in a levée en masse are not entitled to take part in hostilities. Civilians are to be protected under the LOAC. They are not lawful targets and not, generally, PWs. Any detention of a civilian is by exception, usually in accordance with the provisions of GC IV. The general protection of civilians against the effects of hostilities is, perhaps, the most fundamental principle of the LOAC. This is the principle of distinction. This basic concept has long been established in customary law and was codified in Article 48 of AP I. Its goal is to “ensure in every feasible manner that international armed conflicts be waged solely among the combatants of the belligerent parties.”11 However, just as it is possible to lose combatant immunity by failing to comply with the LOAC, so too can civilians lose their protection if they take a direct part in hostilities and violate the principle of distinction.

Unlawful Combatants / Unprivileged Belligerents

The terms “unlawful combatant” and “unprivileged belligerent”12 are nowhere found in the GCs, APs or any other Convention. The terms exist in customary international law and have been affirmed in jurisprudence,13 state practice14 and academic commentary.15 The LOAC has denied the status of lawful combatant to fighters who conduct violence for private rather than public purposes or who carry out specific unprivileged acts. Historically there have been two types of unlawful combatants/unprivileged belligerents: combatants who are authorized to fight by a legitimate party to a conflict (i.e., state or state-like entity) but whose conduct (usually spying) negates their status upon capture, and civilians (other than a levée en masse) who are not lawful combatants but nevertheless participate in hostilities. Generally, such persons are, upon capture, not entitled to PW status. Nevertheless, the denial of PW status does not mean that such detainees would have no right or protections under international law and the

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LOAC. At a minimum, they would be entitled to humane treatment under customary law.16 While classifying detainees as unlawful combatants/unlawful belligerents and not according them PWs status when they do not comply with the requirements for that status does not breach international law this can in no way justify abuse, torture or any other form of inhumane treatment of detainees.

PW Status Determination

Article 5 of GC III addresses the issue of the legal status of a captured or detained person who has committed a belligerent act during an international armed conflict. It notes that a person who belongs to any of the categories under Article 4 will be treated in all respects as a PW. If there is a doubt about whether a detainee is entitled to PW status, Article 5 delineates the requirement to conduct a status determination tribunal.17

Canada enacted the Geneva Conventions Act18 which approves the GCs and APs I & II and incorporates grave breaches into domestic law as offences. Pursuant to section 8 of the Act, the Minister of National Defence (MND) enacted the Prisoner of War Status Determination Regulations, SOR/91-13419 which allow for the establishment of a tribunal to determine whether a detainee brought before it is entitled to PW status.

Neither the GCs nor the PW Status Determination Regulations oblige the CF to conduct status determination tribunals prior to transferring detainees to another state. For example, in a coalition context, it would be virtually impossible for operations to be conducted in accordance with the campaign plan if every member of the coalition was required to conduct a status determination tribunal prior to transferring detainees to another authority. This would significantly impair the coalition commander’s ability to plan operations and deploy coalition resources because all the forces could be occupied with screening and conducting status determination tribunals. International law provides for the transfer of detainees as long as the Detaining Power is satisfied that the receiving authority is willing and able to apply the appropriate international legal standards. Generally, a “Detaining Power” will be the Power or Party which detains an individual for any period of time beyond that reasonably required between initial capture and transfer to another Power and which has the ability and resources to the maintain a long-term detention facility. Thus, if a status determination tribunal is required, it can be conducted by a Party that is willing and able to apply the appropriate international legal standards. This reflects the reality of coalition operations by only obliging one of the coalition members, usually the one with the ability and resources to deal with large scale processing of detainees, to screen detainees or, if necessary, to hold status determination tribunals.

Article 7 of the PW Status Determination Regulations describes a screening process for detainees.20 Although this Article could be interpreted as creating a

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positive duty for each Commanding Officer to conduct a screening of every person detained by their respective units, such an interpretation would be too narrow and not sufficiently practicable, contextual or purposive. The PW Status Determination Regulations must be read in the context of the application of the GCs and in light of the realities of military operations, particularly coalition military operations.

The realities of military operations, especially coalition operations, require a purposive application of the Regulations. The lack of a purposive application would likely result in operations being unreasonably hampered and confusion in the chain of command. For example, during most combat operations, the initial capture of enemy forces following an engagement is often chaotic and emotionally highly charged. It is invariably not practical for the precise status of the detainee to be determined at the time of capture. The procedural requirements for conducting a status determination tribunal under the regulations are time consuming and, realistically, can only be achieved under secure circumstances.21 It would be unreasonable and unfair for both the Detaining Power and the detainee if the tribunal had to be conducted at the moment of apprehension by the capturing unit.

Regarding screening of detainees, a key point is determining what is “practicable” in an operational setting. QR&O Article 1.065 states “practicable” shall be construed as “physically possible.” Similarly, the ability to hold status determination tribunals must be interpreted in light of the complexity of those tribunals including the ability to collect and disclose evidence, the preparation of minutes of proceedings, the provision of representation and the attendance of witnesses. Realistically, such tribunals can only be conducted at an established secure location. In military operations, it may well be physically impossible to establish a secure location in every place a CF unit is located in order to screen detainees or conduct status determination tribunals.

In a coalition operation, such as the Campaign Against Terrorism, PW status determination would practically speaking be carried out by authorities who have the ability and resources to deal with the processing of detainees. Such authorities usually assume the responsibility of establishing and maintaining coalition short and long-term detention facilities. Other coalition forces, such as the CF, would not likely be assigned the task of screening or conducting status determination tribunals. In this sense, the PW Status Determination Regulations would not likely apply as the CF is not required by the Coalition Commander to deal with any more than the transitory custody of detained persons. In other words, it would not necessarily be the responsibility of the CF in a coalition operation to screen, conduct status determination tribunals or establish and maintain the coalition short and long-term detention facilities.

Moreover, the GCs require a status determination tribunal only if there is doubt as to whether persons, having committed a belligerent act and having fallen into

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the hands of the enemy, are entitled to PW status. Article 5 is unclear about who must have a doubt in order for status determination tribunals to be conducted. The ICRC Commentary on this issue is minimal. However, jurisprudence22 and state practice (i.e., creation of PW status determination tribunal under national laws) indicate that the doubt must arise with the Detaining Power. This is logical given that the GCs apply to states and it is states that are responsible for persons captured by its forces. Accordingly, if the Detaining Power has no doubt that a detained person is or is not entitled to PW status then there would be no legal requirement to conduct PW status determination tribunals.

Armed Conflict Not of an International Character

The majority of the LOAC deals with armed conflicts of an international character. However, some of the LOAC addresses armed conflicts not of an international character (most commonly civil wars). Common Article 3 to the GCs, 1949 and AP II, 1977 are the key legal instruments applicable to armed conflicts not of an international character. One of the significant differences in the rules applicable to non-international armed conflict is that there is no combatant status and, therefore, no entitlement to PW status. Government authority is entitled to treat its opponents in accordance with its national laws (i.e., as common criminals or traitors).

Despite the differences in the rules applicable to international and non-international armed conflicts, the growing number and complexity of non-international armed conflicts has blurred the legal lines of demarcation between the two. Accordingly, in light of the increasingly complex operational and security environments, there is growing recognition that many of the rules and concepts applicable in international armed conflicts should apply to non-international ones. Moreover, it is CF policy to apply the spirit and principles of the entirety of the LOAC during all its international deployments.23 It may also be useful to consider applying the spirit and principles of international human rights law, particularly when the CF is involved in armed conflict not of an international character.

Non-Armed Conflict Operations

These operations can include a broad range of military operations that do not reach the level and intensity of armed conflict. Examples of non-armed conflict operations can include, but are not limited to, humanitarian assistance, non-combatant evacuation operations (NEO) and United Nations (UN) supported or mandated missions, such as peacekeeping and peace enforcement. The LOAC does not apply as a matter of law to such non-armed conflict operations though the CF will apply the spirit and principles during all international operations.24

Accordingly, the key difference between detainees in armed conflict and non-armed conflict operations is that there are no categories of ‘combatants,’ ‘unlawful combatants,’ PWs, and civilian ‘internees’ as defined under the LOAC during non-armed conflict operations.

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Categories of Detainees

Other than the specific categories of detainees defined under the LOAC (e.g., combatants, unlawful combatants, unprivileged belligerents, PWs, and civilian internees), there are common categories of persons detained during all international CF operations.

The categories of detainees during all international CF operations will be defined by the combination of the legal mandate for the mission (e.g., LOAC and United Nations Security Council Resolutions), the strategic guidance issued by the Government of Canada, the Chief of the Defence Staff’s Operation Order, the Rules of Engagement and the Task Force Commander’s Operation Order. Generally the main categories of persons detained (short or long term) can include, though not be limited to:

a. combatants/PWs (LOAC);

b. unlawful combatants (LOAC);

c. civilian internees (LOAC);

d. civilians in assigned residences (LOAC);

e. persons who demonstrate hostile intent or commit a hostile act against CF members or units;

f. persons who demonstrate hostile intent or commit a hostile act against Allied/Coalition members or units;

g. persons who obstruct or interfere with the mission;

h. persons who demonstrate hostile intent or commit a hostile act against mission essential force property;

i. persons who enter or attempt to enter defence controlled areas without authority; and

j. persons who commit or are suspected of committing serious crimes, including war crimes, crimes against humanity or other breaches of the LOAC and international human rights law.

Treatment of Detainees25

The treatment accorded detainees during international CF operations could be based on the determination of their legal status (e.g., combatants, unlawful combatants, civilian internees, war criminals, petty criminals and so on). However, it is CF policy26 to treat all detainees, regardless of their legal status, humanely in a manner consistent with the standard of PW treatment as defined in GC III. This standard of care is the highest one that can be provided to a detained person.

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The standards of treatment that PWs are entitled to are detailed in several CF publications such as the Code of Conduct for CF Personnel, The Law of Armed Conflict at the Operational and Tactical Level and Prisoner of War Handling, Detainees and Interrogation & Tactical Questioning in International Operations. This policy creates a single clear standard of humane treatment for all detainees during CF international operations. However, providing PW treatment to a detainee does not mean that, as a matter of law, the individual is entitled to PW status.

Restraints, Blindfolds, Hoods and Security

Restraints will only be employed for the purposes of force protection or for the protection of the detained individual. Similarly blindfolds, and in exceptional cases, hoods, may only be used for limited periods of time when it is necessary to deprive the detainee of sight for force protection or for the protection of the detained individual. The use of restraints, blindfolds, hoods or similar protection measures is by exception and only as specifically authorized in orders and Rules of Engagement issued by the Chief of the Defence Staff on a operation-by-operation basis.

Searches of detainees shall be conducted using CF-authorized methods and only as specifically authorized in orders and Rules of Engagement issued by the Chief of the Defence Staff. When a search is conducted it must be ensured that the dignity of the individual is respected.27

Interrogation and Tactical Questioning of Detainees

The treatment of detainees held for interrogation and tactical questioning28 will comply with Canadian law and relevant international laws, conventions and agreements, including GC III (relative to the treatment of PW), and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984). The primary aim of interrogation and tactical questioning is the timely extraction of information and intelligence from a detainee in a humane manner, and the dissemination of that product to the relevant command in order that it may be used in the production of intelligence estimates and in decision-making.

Interrogation and tactical questioning (TQ) are intelligence-gathering activities, defined as follows:

a. Interrogation. Interrogation is the systematic questioning of a detainee to obtain information of intelligence value;

b. Tactical Questioning. The first questioning and screening to which a detainee is subjected to obtain information of immediate tactical value. 29

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Within the CF, the term ‘interrogation’ may be used to refer to intelligence gathering or criminal investigation. In this section, ‘interrogation’ is used in the intelligence gathering sense.

Successful interrogation and tactical questioning require a solid understanding of the needs of the particular intelligence operation and skill in conduct. For this reason, only specified personnel are authorized to conduct interrogation and tactical questioning, specifically:

a. Interrogation. Only interrogators from the CF Intelligence Branch who are trained in accordance with CF standards are authorized to conduct interrogations. Scientific and technical intelligence specialists may assist in interrogations but must be similarly qualified in order to conduct interrogations on their own; and

b. Tactical Questioning. In a unit, only designated personnel trained to CF standards will conduct tactical questioning. 30

Although the actual conduct of interrogation is restricted to specified personnel, all CF personnel involved in detainee handling play an important part in its success. Commanders at all levels, troops who first detain a person, and those responsible for the evacuation chain can all assist in effective interrogation by conducting proper detainee handling and ensuring that processing occurs in a timely, efficient manner.

a. all interrogation and tactical questioning activity will fully comply with Canadian law and relevant international laws, conventions, and agreements, including the GC III, and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984);

b. detainees must be humanely treated at all times;

c. detainees must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity;

d. detainees are entitled in all circumstances to respect for their persons and their honour. Women shall be treated with all the regard due to their sex and shall in all cases benefit from treatment as favourable as that granted to men. Children who have not attained the age of 18 years shall be the object of special respect; and

e. no physical or mental torture, nor any other form of coercion, may be inflicted on detainees to secure from them information of any kind whatever.31

Generally, detainees may be questioned on any matter but are not obliged to provide any answers. Detainees who are PWs are bound to give only their surname, first names and rank, date of birth, army, regimental, personal or serial

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number, or failing this, equivalent information. Detainees who refuse to provide answers may not be subjected to torture, abuse or inhumane treatment.

Transfer of Detainees

Practically speaking, the role and structure of CF units participating in international operations are not suited to deal with any more than the transitory custody of detained persons. The clear majority of CF international operations are Allied/Coalition ones (e.g., UN mandated missions or the Campaign Against Terrorism). In the context of coalition operations, persons detained by the CF in the theatre of operations will likely be transferred either to the coalition authorities who are responsible for maintaining a detention facility, to local host nation authorities or released.

Generally, international law permits the transfer of detainees between states as long as the transferring state is satisfied that the accepting state is willing and able to abide by international obligations for the handling and humane treatment of detainees. For example, portions of the LOAC, as reflected in the provisions of GCs III & IV, provide for the transfer of captured or detained persons who have taken part in hostilities to other nations who are willing and able to apply the standards for handling and treatment of such persons.32 In such situations it usually remains the responsibility of the Detaining Power to determine the legal status of a detainee. Importantly, the mere fact that an individual captured by the CF during an international operation may be defined as a ‘detainee’ under CF doctrine33 or the PW Status Determination Regulations34 does not necessarily make Canada a ‘Detaining Power’ under international law. A ‘Detaining Power’ can be either a Transferring or Accepting Power. As noted previously, a ‘Detaining Power’ will generally be the Power which detains an individual for any period of time beyond that reasonably required between initial capture and transfer and which has the ability and resources to the maintain a long-term detention facility. The main purpose of classifying an individual captured by the CF as a ‘detainee’ (as defined under CF doctrine or under the PW Status Determination Regulations) is that it triggers the CF policy to treat all detainees, regardless of their legal status or regardless of whether Canada is a ‘Detaining Power,’ humanely in manner consistent with the standard of PW treatment as defined in Geneva Convention (GC) III.

A transferring state's responsibility regarding a detainee does not end at the moment of transfer. For example, if a transferred detainee has PW status, Canada would have a residual obligation, pursuant to Article 12 GC III, to take effective measures to correct any situation upon being notified that the provisions of GC III are not being complied with in any important respect. Normally, the role of notifying a transferring state rests with the Protecting Power (often the ICRC).

Under customary international law, an argument can be made that a residual obligation analogous to that found at Article 12 GC III for PWs also exists for

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unlawful combatants or other civilian detainees (e.g., petty criminals and persons interfering with the mission) who are transferred to an accepting state. Accordingly, Canada would likely have a residual obligation to take effective measures to correct any situation upon being notified by an entity similar to a Protecting Power that an accepting state has failed, in any important way, to treat the transferred detainee humanely in a manner consistent with the standard required under international law. The ability of such an entity to engage the Canadian authorities in individual cases would depend upon its being aware of the transfer of a particular detainee by the CF.

Conclusion

The legal, operational and policy issues arising from detainee handling and treatment during international operations can be varied, nuanced and complex. Resolution of such issues requires a basic understanding of the key international legal frameworks, primarily the LOAC and international human rights law. While handling and treatment of detainees can vary according to the legal status of the detainees, it must be emphasized that CF policy is to treat all detainees, regardless of their legal status, humanely in a manner consistent with the standard of PW treatment as defined in Geneva Convention (GC) III. Moreover, it is prohibited in all circumstances to torture, abuse or to treat inhumanely any detainee.

It is crucial to account for detainees as a key planning factor in all CF operations. If this does not occur, then CF commanders will be faced with the problem of handling detainees, possibly in large numbers, for whom little provision has been made in terms of treatment, transfer, use of force, questioning, processing and logistics. If such problems occur, then the conduct of operations will likely be severely impacted and detainees may be subjected to improper treatment. This would be unacceptable for Canada, CF commanders and CF members and would likely result in mission failure. Conversely, a fully informed appreciation of detainee issues and full consideration of such issues in the operational planning process will contribute to mission success and will reaffirm the professionalism, effectiveness, honour and humanity of the CF.

References 1 See CF Publications B-GJ-005-501/FP-000, Use of Force in CF Operations; BB-GG-005-027/AF-021, The Law of Armed Conflict at the Operational and Tactical Level; B-GG-005-027/AF-023, The Code of Conduct for CF Personnel; and B-GJ-005-110/FP-020, Prisoner of War Handling, Detainees and Interrogation & Tactical Questioning in International Operations.

2 Perhaps no other Law of Armed Conflict (LOAC) concepts have been the subject of more semantic debate than those of “unlawful combatant” and “unprivileged belligerent” (see footnote 14 below.). Some may view the two terms as being legally distinct, i.e. “unlawful combatants” are often viewed as combatants who are authorized to fight by a legitimate party to a conflict (i.e. state or state-like entity) but whose conduct (usually spying while disguised as a civilian or in the

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uniform of the adverse party) negates their PW status upon capture while “unprivileged belligerents” are often viewed as civilians (other than a levée en masse) who are not lawful combatants but nevertheless participate in hostilities. The terms are used generally to describe persons who have unlawfully taken part in hostilities and, if captured, would not be legally classified as having PW status under the LOAC. The terms are nowhere found in the GCs, APs or any other Convention. The terms exist in customary international law and have been affirmed in jurisprudence, state practice and academic commentary. The CF recognizes both terms and, for the purposes of this Manual, they may be used interchangeably. For ease of reference, this Manual will generally use the term “unlawful combatants”.

3 For example, the CF mission in Somalia in 1993 was successful in many respects. However, the successes were vastly overshadowed by a single event involving a Somalia teenager detained by the CF. The teenager, Shidane Arone, was beaten to death by members of the Canadian Airborne Regiment while being detained. The incident caused outrage in Canada and around the world. It eventually contributed to the disgrace and disbandment of the Canadian Airborne Regiment.

4 The lex specialis of LOAC applies during any armed conflict. Key provisions of the Third Geneva Convention Relative to the Treatment of Prisoners of War (GC III), Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War (GC IV) and Additional Protocol I, 1977 (API) delineate the classification of persons in the conflict and the treatment which they must be accorded. Abella v Argentina, IACHR Report 55/97(1997), paras151-161 affirms this concept. See Geneva Convention Relative to the Treatment of Prisoners of War [GC III], Geneva Convention Relative to the Protection of Civilian Persons in Time of War [GC IV] and Additional Protocol I [API], 12 August 1949, U.N.T.S., online: United Nations High Commissioner for Refugees <http://www.unhchr.ch/html/menu3/b/91.htm>.

5 API, ibid., art. 75.

6 See Inter-American Commission on Human Rights (IACHR), Report on Terrorism and Human Rights (Washington, D.C.: IACHR, 2002) at para 68, online: Organisation of American States <http://www.oas.org/main/main.asp?sLang=E&sLink=http://www.oas.org/consejo/default.htm>. For more on combatant immunity see also R. Goldman and B. Tittemore, Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law (Washington, D.C.: ASIL, 2002) online: American Society of International Law <http://www.asil.org/terrorind.htm>.

7 Y. Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict (Cambridge: Cambridge University Press, 2004) at 31.

8 See Mike Matheson, “The US Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Conventions” (1987) 2 Am U JIL & Pol 419 at 425; C. Greenwood, “Customary Law Status of the 1977 Geneva Protocols” in Delissen and Tanja, ed. Humanitarian Law of Armed Conflict Essays in Honor of Frits Kalshoven (The Netherlands: TMC Asser Press, 1991) at 93 -113.

9 GC III, supra note 4, art. 84; A. Roberts and R. Guelff, Documents on the Laws of War, 3rd ed., (Oxford: Oxford University Press, 2003) at 277.

10 Roberts and Guelff, ibid. at p.448.

11 Dinstein, supra note 6 at p.27.

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12 See CF B-GG-005-027/AF-21, LOAC at the Operational and Tactical Level (2001) at pp.3-4 to 3-5. In this manual the term “unlawful combatant” may be used interchangeably with the term “unprivileged belligerent”. See note 2 above.

13 Ex Parte Quirin, 317 U.S. 1 (1942); Public Prosecutor v. Oie Hee Koi [1968] AC 829 and Mohamed Ali v. Public Prosecutor [1969] 1 AC 430; Military Prosecutor v.Omar Mahmud Kassem and Others, Israeli Military Court, 13 April 1969, 42 ILR (1971); Rasul et al. v. Bush, President of the United States et al., No. 03–334. (28 June 2004); Hamdi et al. v. Rumsfeld, Secretary Of Defense, et al., No. 03–6696 (28 June 2004); Rumsfeld, Secretary Of Defense v. Padilla et al., No. 03–1027 (28 June 2004).

14 US Department of the Army FM 27-10. Law of Land Warfare (1976) at paras 80-81; B-GG-005-027/AF-21, pp. 3-4 to 3-5; UK MoD, The Manual of the LOAC, (Oxford: Oxford University Press, 2004) at para 4.2.1; German MoD, The Handbook of Humanitarian Law in Armed Conflicts, ed. D. Fleck (Oxford: Oxford University Press, 1999) at para. 302.

15 R. Baxter, “So-Called "Unprivileged Belligerency": Spies, Guerrillas and Saboteurs” (1951) 28 BYBIL 323; W. Mallison & S. Mallison, “The Juridical Status of Irregular Combatants under the International Humanitarian Law of Armed Conflict” (1977) 9 Case W Res J Int’l L 39; L.C. Green, The Contemporary LOAC, 2ed. (Manchester: Manchester University Press, 2000) at 102-121; Y. Dinstein, “The Distinction Between Unlawful Combatants and War Criminals” in Y. Dinstein, ed., International Law at a Time of Perplexity (Dordrecht: Martinus Nijhoff Publishers, 1989) at 102 - 116; Kenneth W. Watkin Combatants, Unprivileged Belligerents and Conflicts in the 21st Century (Cambridge: International Humanitarian Law Research Institute, 2003); K. Dörmann, “The Legal Situation of “Unlawful/Unprivileged Combatants” (2003) 849 IRRC at 73. See also footnote 2 above.

16 Common Article 3 to the GCs and Article 75 of API delineate minimum standards of humane treatment that are considered reflective of customary law, supra note 4.

17 Article 5 states: “Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal”. Roberts and Guelff, supra note 9 at 247.

18 Geneva Conventions Act, R.S. 1985, c. G-3.

19 Appendix 1.5 to Volume IV of the Queen’s Regulations and Orders for the Canadian Forces.

20 Article 7 states: “The commanding officer of a unit or other element of the Canadian Forces shall ensure that each detainee is screened as soon as is practicable after being taken into custody to determine either

(a) whether or not the detainee is entitled to prisoner-of-war status; or

(b) whether there is doubt with respect to the detainee's entitlement to prisoner-of-war status”.

21 For example, the Regulations provide for the appointment of an investigating member for the tribunal, the designation of an assisting member for the detainee, the designation of an interpreter, a hearing, minutes of proceedings, witness fees and other "trial-like" procedures. Given these procedural requirements, it would be very difficult to conduct tribunals in an unsafe, fluid and volatile environment such as often exists at the point of capture.

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22 Public Prosecutor v. Oie Hee Koi, supra note 13 at para 855.

23 See supra note 4 above

24 See chapter 17, section 6 of this manual.

25 See B-GJ-005-110/FP-020 for more specific doctrine on the handling and treatment of detained persons during CF international operations.

26 See B-GJ-005-501/FP-000, B-GG-005-027/AF-023, B-GJ-005-110/FP-020, supra note 1; and NDHQ Action Directive D1/95, Prisoners of War, Interned Civilian Protected Persons, Detainees and Interrogation Training, 23 March 1995.

27 See B-GJ-005-110/FP-020 and B-GJ-005-501/FP-000.

28 See B-GJ-005-110/FP-020 for more specific doctrine on the questioning and tactical interrogation of detainees during CF international operations.

29 Ibid. at 4-1.

30 Ibid. at 4-1 and 4-2.

31 Ibid. at 4-2.

32 Article 12 of GC III states: “Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention”. There is a similar provision for the transfer of civilian in GC IV.

33 See B-GJ-005-501/FP-000, BB-GG-005-027/AF-021, B-GG-005-027/AF-023, B-GJ-005-110/FP-020.

34 Article 2 of the Regulations states: “detainee” means a person in the custody of a unit or other element of the Canadian Forces who has committed a belligerent act”.

Introduction to Module 6

Command and Individual Legal Responsibility for the Use of Force During CF International Operations

Applicable LOAC rules create individual international and domestic legal obligations for all CF members involved in international operations. Indeed, Canada has implemented LOAC obligations domestically through a variety of Canadian statutes including the NDA, the Criminal Code, the Geneva Conventions Act, and the Crimes Against Humanity and War Crimes Act. Furthermore, CF commanders are legally responsible and may be held criminally accountable for the acts and omissions of their subordinates who commit offences under the Crimes Against Humanity and War Crimes Act if the commanders fail to “exercise control properly over a person under their effective command and control,” know, or are “criminally negligent in failing to know, that

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the person is about to commit, or is committing such an offence,” or fail “to take, as soon as practicable, all necessary and reasonable measures within their power to prevent or repress the commission of the offence.”

1 Crimes Against Humanity and War Crimes Act, 2000, c. 24. s. 7(1).

Command Responsibility

Duty of Commanders

General Lothar Rendulic (1887-

1971)

General Yomoyuki Yamashita

(1885-1946)

Commanders are responsible, with respect to members of the armed forces under their command and other persons under their control, to prevent and, where necessary, to suppress and to report to competent authorities, breaches of the LOAC.

AP l Art 87 (1)

In order to prevent and suppress breaches, commanders are responsible for ensuring that members of the armed forces under their command are aware of their obligations under the LOAC.

AP l Art 87 (2)

A commander who is aware that subordinates or other persons under his control are about to commit or have committed a breach of the LOAC is required to initiate such steps as are necessary to prevent violations of the LOAC and, where appropriate, to initiate disciplinary or penal action against these persons.

AP l Art 87 (3)

The International Criminal Court will have jurisdiction to try individuals for crimes relating to command responsibility. The Statute of the Court states:

(1) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

a. The military commander or person either knew or, owing to the circumstances at the time, should have know that the forces were committing or about to commit such crimes; and

b. That the military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress

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their commission or to submit the matter to the competent authorities for investigation and prosecution.

(2) With respect to superior and subordinate relationships [i.e. that between superior and civilian employees], a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

a. The superior either knew, or consciously disregarded information, which clearly indicated, that the subordinates were committing or about to commit such crimes;

b. The crimes concerned activities that were within the effective responsibility and control of the superior; and

c. The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

RS Art 28

Failure to Act

The fact that a subordinate committed a breach of the LOAC does not absolve superiors from penal or disciplinary responsibility. Superiors are guilty of an offence if they knew, or had information which should have enabled them to conclude, in the circumstances ruling at the time, that the subordinate was committing or about to commit a breach of the LOAC, and they did not take all feasible measures within their power to prevent or repress the breach.

RS Art 28 (2) (c)

Essential Elements of Command Responsibility

Essential Elements of Command Responsibility

Command responsibility for military and civilian superiors as currently interpreted by the ad hoc Tribunals can be broken down into three elements:

i) the existence of a superior-subordinate relationship;

ii) the superior knew or had reason to know that the criminal act was about to be or had been committed; and

iii) the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.

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The proof of these elements requires fact-specific evidence and is determined on a case-by-case basis. The ICC Statute incorporated most of these elements into Article 28, with two major exceptions: first, under the ICC Statute, military commanders will be held to the negligence standard (“should have known”), which is a lower standard than the recklessness standard (“had reason to know”) used before the ICTY; second, civilian superiors will be held to the “consciously disregarded” standard, a very distinct standard from that of military commanders. The strict distinction between the responsibility of military commanders and civilian superiors under Article 28 of the ICC Statute makes clear that the drafters wanted to limit the liability of the latter, perhaps in part because the line of responsibility in civilian hierarchies is more nebulous than in military ones. While it remains to be seen how the ICC will interpret Article 28, the jurisprudence of the ad hoc Tribunals on command responsibility will, undoubtedly, be instructive for the ICC.

Finally, it bears reiterating, that when a commander fails to take action after learning of ongoing criminal activity of his subordinates, his failure to act will not only amount to criminal responsibility under Article 7(3) of the ICTY or Article 6(3) of the ICTR Statute; it will also amount to individual criminal responsibility under Article 7(1) or 6(1), at a minimum aiding and abetting, which will prompt a harsher sentence.

Expectedly, the ICC will follow suit; hence the necessity for military commanders or civilian superiors to act, without hesitation, upon learning of ongoing criminal activity under their watch.

Facts

Case review: PROSECUTOR V. HALILOVIĆ

CASE NO. IT-01-48, TRIAL JUDGMENT, 16 NOVEMBER 2005.

Sefer Halilović was appointed by the Presidency of the Republic of the Patriotic League (RBiH) as commander of the Territorial Defence. He further held the title of Chief/Commander of the Main Staff of the Army of the RBiH.

The Prosecution alleged that senior commanders of the Army of BiH, including Halilović, decided to conduct a military operation called Neretva-93 to end the HVO blockade of Mostar. Halilović was allegedly the commander of this operation when two incidents occurred. In one incident, thirty-three Bosnian Croat civilians were killed in Grabovica. Halilović was allegedly notified of the killings and was obligated to act urgently. Halilović was allegedly ordered by his superior to punish those responsible and failed to do so. The second incident allegedly occurred in Uzdol, where 29 Bosnian Croat civilians and one HVO prisoner of war were killed.

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Halilović was charged with murder under Article 3 of the ICTY statute and liability was charged as command responsibility under Article 7(3). The Prosecution indicted Halilović under article 7(3) because allegedly he defied his duties as commander by not taking effective measures to prevent the killings of civilians in Grabovica and did not take steps to carry out a proper investigation to identify the perpetrators of the killings in both Grabovica and Uzdol or punish the perpetrators accordingly.

Issue 1

Does the language “for the acts of his subordinates” under Article 7(3) mean that a commander shares the same responsibility as his subordinates or does it mean that a commander is responsible for his failure to act?

Legal Holding

Command responsibility under 7(3) is responsibility for an omission, that is, the commander’s failure to act. The commander is responsible for the failure to perform an act required by international law. This omission is culpable because international law imposes an affirmative duty on superiors to prevent and punish crimes committed by their subordinates. Thus, “for the acts of his subordinates” does not mean that the commander shares the same responsibility as his subordinates. The imposition of responsibility is to be weighed against the crimes of his subordinates; a commander is responsible not as though he had committed the crime himself, but his responsibility is considered in proportion to the gravity of the offences committed.

Legal Reasoning

The history of command responsibility has wavered as far as exactly what crime the superior is guilty of under the doctrine. Either the superior is guilty of the crime the subordinates commit or he is guilty of a separate crime altogether, specifically failure to prevent or punish. The ICTY has predominantly held that command responsibility is a crime in itself, only to be weighed against the crime committed by the subordinates. The Trial Chamber surmised that, “(t)hus ‘for the acts of his subordinates’ as generally referred to in the jurisprudence of the Tribunal does not mean that the commander shares the same responsibility as the subordinates who committed the crimes, but rather that because of the crimes committed by his subordinates, the commander should bear responsibility for his failure to act”. This reasoning echoes findings from other Trial Chambers in the Tribunal. To date, the Appeals Chamber has not been presented with this issue and, thus, has not officially ruled upon it.

Issue 2

What are the elements of command responsibility?

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Legal Holding

Jurisprudence of the tribunal has established three elements that must be satisfied:

1. the existence of a superior-subordinate relationship;

2. the superior knew or had reason to know that the criminal act was about to be or had been committed; and

3. the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.

Legal Reasoning

The main factor in determining whether there is a superior-subordinate relationship is the establishment of “actual possession or non-possession of powers of control over the actions of subordinates”, also known as ‘effective control’. Effective control is defined as the “material ability to prevent and punish criminal conduct.”

Relevant indicators of effective control are a question of evidence, rather than substantive law, and may include:

1. the official position held by the accused;

2. his capacity to issue orders, whether de jure or de facto;

3. the procedure for appointment;

4. the position of the accused within the military or political structure; and

5. actual tasks performed.

These indicators must show that the accused had the power to punish or prevent or initiate measures leadings to proceedings against the accused where appropriate. It should be noted that the test of effective control implies that more than one superior may be held responsible for his failure to prevent or punish.

Knowledge

Command responsibility is not a form of strict liability. It must be proven that the superior had (1) actual knowledge that his subordinates were committing or about to commit crimes or that (2) he had in his possession information which would at least have put him on notice of the risk of such offences. The information must have been such that it would have alerted him to the need for additional investigation to determine whether such crimes had been or were about to be committed by his subordinates.

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Factors to be considered in determining if the superior had actual knowledge include:

1. Number, type and scope of illegal acts committed by the subordinates as alleged in the indictment;

2. The time during which the illegal acts occurred;

3. The number and types of troops and logistics involved;

4. The geographical location of events and the accused’s proximity thereto;

5. Whether the occurrence of the acts is widespread;

6. The tactical tempo of the operations;

7. Working methods of similar illegal acts; and

8. The fact that a military commander is more likely to be part of an organized structure with reporting and monitoring systems has been found to facilitate proof of actual knowledge.

A superior will be considered to have “reason to know” only if information was available to him which would put him on notice of offences which are about to be or were committed by his subordinates.

The information need not be specific that unlawful acts have been or are about to be committed; if a commander has received information that some of his subordinates have violent or unstable character or have been drinking prior to a mission, he may be considered to have the requisite knowledge.

The superior is not liable for failing to acquire the information in the first place. However, the requisite knowledge may be assumed where a superior had the means to obtain the relevant information and deliberately refrained from doing so, making wilful blindness impermissible on the part of the superior.

Failure to Prevent or Punish

A superior has a duty to prevent when he obtains actual knowledge or has reasonable grounds to suspect that a crime is being committed. The duty to punish only arises after the commission of a crime. Liability for an offence, however, cannot be cured by simply punishing the subordinate for the commission of the offence if one has failed to take necessary and reasonable measures. Necessary and reasonable measures are weighed on the basis of many factors, including, but not limited to:

1. Whether the ability of the superior is intrinsically linked to the superior’s rank;

2. Whether it is possible to prevent under the circumstances;

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3. Whether specific orders prohibiting or stopping the criminal activities were issued;

4. What measures to secure the implementation of these orders were taken;

5. What other measures were reasonably sufficient in the specific circumstances; and

6. After the commission of the crime, what steps were taken to secure an adequate investigation and to bring the perpetrators to justice.

I. Prevent

In determining whether a superior has breached his duty to prevent, the Trial Chambers use, among others, the following factors:

1. Superior's failure to secure reports that military actions have been carried out in accordance with international humanitarian law (IHL);

2. Failure to issue orders aiming at bringing relevant practices into accord with IHL;

3. Failure to take disciplinary measures to prevent;

4. Failure to protest against or criticize criminal action; and

5. Failure to insist before a superior authority that immediate action is taken.

II. Punish

Punishment is an inherent part in the prevention of future crimes. Therefore, it is insufficient for a commander simply to issue preventative orders or ensure that systems are in place for the proper treatment of civilians or prisoners of war, when subsequent breaches remain unpunished. In addition, the superior has an obligation to investigate possible crimes or have the matter investigated in order to establish the facts. If the superior has no power to sanction, he should report it to authorities or call for a report. In other words, the superior must take active steps towards ensuring the perpetrators are brought to justice through whatever means are available to him. The superior does not need to be able to punish or even to dispense punishment, but he must take an important step in the disciplinary process.

Evidentiary Matters

While Halilović did have a degree of influence in his rank, influence falls short of effective control. Halilović did not have either de jure or de facto control during the crimes committed.

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1. Evidence does not give rise to a clear picture of Halilović's position, either de jure or de facto within the structure of the Main Staff at the relevant time;

2. Evidence that there was a military operation named “Neretva” was not persuasive. Combat operations were carried out only by individual units;

3. Evidence was presented that Rasim Delić, a Commander of the Main Staff, certified all documents in which the alleged operation was planned. Documents sent by Halilović during the relevant time are consistent with his role as Team Leader of the Inspection Team.

4. After confirming Halilović’s order with Delić, the Commander of 1st Corps did not carry it out;

5. The Trial Chamber was not presented with any combat order signed by Halilović for the Vrdi axis and the combat order for the start of combat operations was issued by Alispago;

6. There was no evidence that Alispago was subordinate to Halilović;

7. Based on the evidence, Halilović did not have the material ability to punish the perpetrators of the crimes committed in Grabovica;

8. It has not been proven that Enver Buza or the Prozor Independent Battalion were subordinate to Halilović at the times of the alleged crimes in Uzdol; and

9. Evidence presented does not show that Halilović had any role in the investigations concerning the crimes committed in Uzdol. The investigations were carried about by the Military Security Service (SVB) of the 6th Corps and the SVB of the Prozor Independent Battalion. Jasarevic was informed of the results of the investigations.

Thus, it cannot be concluded that Halilović had the material ability to punish the perpetrators of the crimes committed in Uzdol.

Introduction to Module 7

This module explains the term “war crime” and defines the "other breachers" of LOAC, it identifies those who may be held criminally liable for violations of the laws and customs of war, lists possible defences to these types of charges, and describes war crimes trial procedures.

It also explores the responsibility of commanders to prevent, investigate and repress breaches of the LOAC, as well as the conditions under which commanders may be held criminally liable for violations committed by those under their command.

War Crimes, Criminal Liability and Command Response

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The term "war crime" may be considered in a broad sense as well as in narrow, technical sense. Broadly speaking "war crimes' include all violations of International Law in relation to an armed conflict for which individuals may be prosecuted and punished including crimes against peace, crimes against humanity and genocide. in the narrow, technical sense "war crimes" are violations of the laws and customs of war.

RS Art 8

Broad Sense

Crimes Against Peace

The Tokyo Trials

The Nuremberg Tribunal

Crimes against peace can be described as the illegal use of force under International Law. Crimes against peace include the planning, preparation, initiation, or waging of a declared or undeclared war of aggression or war otherwise in violation of international treaties, agreements, or assurances. Charges of crimes against peace are most likely to be laid against high-level policy planners such as heads of state or senior government officials.

Crimes Against Humanity

Crimes against humanity were first prosecuted before the Nuremberg International Military tribunal following World War II. Crimes against humanity was a collective category of major crimes committed against any civilian population (local or foreign) in relation to an armed conflict. The definition of crimes against humanity has since been refined to include the following crimes directed against any civilian population:

a. murder;

b. extermination;

c. enslavement;

d. deportation;

e. imprisonment;

f. torture;

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g. rape;

h. persecutions on political, racial, and religious grounds; and

i. other inhumane acts.

RS Art 7

Crimes against humanity may be committed during an armed conflict or in time of peace.

Genocide

In 1948 the UN General Assembly defined ”genocide” in the Convention on the Prevention and Punishment of the Crime of Genocide. “Genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national ethnic, racial or religious group:

a. killing members of the group;

b. causing serious bodily or mental harm to members of the group;

c. deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

d. imposing measures intended to prevent births within the group; and

e. forcibly transferring children of the group to another group.

Genocide Convention Art II; RS Art 6

The crime of genocide may be committed during an armed conflict or in time of peace.

Genocide Convention Art I

Narrow Sense

Definition

The term “war crime” in its narrower meaning is a technical expression for a violation of the laws or customs of war. This includes:

a. grave breaches of the Geneva Convention or Additional Protocols to the Geneva Conventions;

b. violations of the Hague Conventions; and

c. violations of the customs of war.

RS Art 8

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Grave Breaches of the 1947 Geneva Conventions

The Geneva Conventions of 1949 and their Additional Protocols of 1977 introduced a distinction between offences considered to be “grave breaches” and other offences.

GI Art 50; GII Art 51; GIII Art 130; GIV Art 147; AP I Art 85

Generally speaking, “grave breaches” are serious violations of the Geneva Conventions or Additional Protocols and will be subject to greater international sanctions and punishment.

States have the obligation to repress grave breaches (i.e., ensure perpetrators are accused and tried) and to take measures necessary to suppress (i.e., bring to an end) all other violations.

GI Art 49 (1) - (3); G II Art 50 (1) - (3); GIII Art 129 (1) - (3); GIV Art 146 (1) - (3)

Grave breaches of GI and GII include wilful killing, torture and inhumane treatment along with wilfully causing great suffering or serious injury to the wounded, sick and shipwrecked. Extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly, are also grave breaches.

GI Art 50; GII Art 51

It is also a grave breach to compel a PW to serve in the forces of the hostile power or to deprive a PW of the right to a fair and regular trial as prescribed in GIII.

GIII Art 130

In the case of civilians in the hands of the adverse party, it is also a grave breach:

a. to unlawfully deport or transfer a protected person;

b. to unlawfully confine a protected person;

c. to compel a protected person to serve in the forces of a hostile power;

d. to wilfully deprive a protected person of the rights of a fair and regular trial prescribed by the Geneva Convention for Civilians (GIV); and

e. to take hostages.

GIV Art 147

Grave Breaches of Additional Protocol I

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It is a grave breach of AP I to commit a wilful act or omission that seriously endangers the physical or mental health or integrity of any person who is in the power of a party other than the one on which that person depends. The wilful act or omission may consist of,

a. subjecting a person to a medial procedure that:

(1) is not indicated by the state of health of that person, and

(2) is not consistent with generally accepted medical standards applicable in similar circumstances to persons who are nationals of the party conducting the procedure and who are in no way deprived of liberty; or

b. subjecting a person, even with that person’s consent, to any of the following:

(1) physical mutilations,

(2) medical or scientific experiments,

(3) removal of tissue or organs for transplantation (except for donations of blood or of skin for grafting given voluntarily and in conformity with generally accepted medical standards), unless justified by the medical needs of the person.

AP l Art 11 (1) - (3)

AP I provides that the following acts constitute grave breaches if they are committed wilfully, in violation of the relevant provisions of the Protocol, and cause death or serious injury to body or health:

a. making the civilian population or individual civilians the object of attack;

b. launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive collateral civilian damage;

c. launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive collateral civilian damage;

d. making non-defended localities and demilitarized zones the object of attack;

e. making a person the object of attack knowing he is hors de combat; or

f. perfidious use of the distinctive emblem of the Red Cross or Red Crescent or other protective signs recognized by the Geneva Conventions or AP I.

AP I Art 85 (3)

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AP I also provides that certain acts are grave breaches when committed wilfully and in violation of the Geneva Conventions or AP I namely,

a. transfer by an occupying power of parts of its own civilian population into occupied territory or deportation or transfer of all or parts of the population of that territory within or out of the territory;

b. unjustifiable delay in repatriating prisoners of war or civilians;

c. practices of apartheid and other inhumane and degrading practices involving outrages upon personal dignity based on racial discrimination;

d. attacks against clearly-recognized historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples, where there is no evidence of prior use of such objects in support of the adverse party's military effort and where such places are not located in the immediate proximity of legitimate targets; and

e. denial of a fair and regular trial to any person protected by the Geneva Conventions or AP I.

AP I Art 85 (4)

The Geneva Conventions Act makes the Geneva Conventions and their two Additional Protocols part of Canadian law. Under that law, a person found guilty of a grave breach is liable to up to 14 years imprisonment. Where the grave breach involves a loss of life, the punishment is life imprisonment.

Violations of Hague Conventions and Customary Law

In addition to actions that are grave breaches under the Geneva Conventions and AP I, other violations of the LOAC are also war crimes and are punishable as such.

In accordance with the Hague Rules, a number of acts are “especially forbidden”. The commission of the following especially forbidden acts is a war crime:

a. using poison or poisoned weapons;

b. treacherously killing or wounding any individual belonging to the hostile nation or army;

c. killing or wounding an enemy who, having laid down his arms or no longer having a means of defence, has surrendered;

d. declaring that no quarter will be given;

e. employing arms or other weapons that are calculated to cause unnecessary suffering;

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f. improperly using a flag of truce, the national flag or military insignia and uniform of the enemy, or the distinctive emblems of the Geneva Conventions;

g. destroying or seizing enemy property, unless imperatively demanded by the necessities of war;

h. declaring abolished, suspended or inadmissible in a court of law the rights and actions of enemy nationals; or

i. compelling enemy nationals to take part in hostilities against their own country, even if they were members of the particular belligerent's forces before the commencement of the conflict.

HlVR Art 23

Other war crimes recognized by the LOAC include:

a. mutilation or other maltreatment of dead bodies,

b. looting or gathering trophies;

c. use of a privileged building for improper purposes;

d. attacking a privileged or protected building;

e. attacking a properly marked hospital ship or medical aircraft;

f. firing upon shipwrecked personnel;

g. participation in hostilities by non-combatants;

h. using asphyxiating, poisonous and other gases;

i. using bacteriological methods of warfare; and

j. genocide.

GII Art 12 (1); AP I Arts 22 (2), 23 (1), 24 (1), 34 (1), 43 (2), 51 (2), 52, 53; 1925 Geneva Protocol For the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare; 1948 Convention on the Prevention and Punishment of the Crime of Genocide

The fact that a particular act is not listed here as a war crime does not preclude its being treated as a war crime if it is a violation of the laws and customs of war (LOAC). Under the 1998 Rome Statute of the International Criminal Court, the Court will have jurisdiction to try individuals for the crime of genocide, crimes against humanity, and war crimes.

RS Art 5 (1)

Individual Criminal Responsibility

Who can be Prosecuted and Punished for War Crimes

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Any person who planned, instigated, ordered, committed or otherwise aided and abetted in the planning, preparation or execution of a war crime may be held criminally responsible for the crime.

RS Art 25 (3)

The official position of any accused person, whether as Head of State or as a responsible government official, does not relieve such person of criminal responsibility nor mitigate punishment.

RS Art 27 (1)

Pursuant to section 130 of the National Defence Act, offences under other federal statutes such as torture (section 269.1 of the Criminal Code of Canada - See Annex A) and the improper use, possession, transfer, etc. of anti-personnel mines (the Anti-personnel Mines Convention Implementation Act- See Annex B) are offences under the Code of Service Discipline.

The fact that any such crime was committed by a subordinate does not relieve a superior of criminal responsibility if the superior knew or had reason to believe that the subordinate was about to commit a war crime, and the superior failed to take the necessary and reasonable measures to prevent or to punish the crime.

RS Art 28 (2)

The fact that an accused person acted pursuant to an order of a Government or a superior does not relieve this person of criminal responsibility. As Mr. Justice Cory stated in the Supreme Court of Canada case of R. v. Finta, “...it is the commander who gives the orders who must accept responsibility for the consequences that flow from the carrying out of his or her orders.” However, in some cases the fact that an accused acted pursuant to a superior order may be considered in mitigation of punishment.

[1994] 1 S.C.R. 701

Responsibilities for Offences Within the CF

Section 72 of the National Defence Act indicates who can be held responsible for offences under Canadian military law. It provides:

72. (1) Every person is a party to and guilty of an offence who

a) actually commits it;

b) does or omits an act for the purpose of aiding any person to commit the offence;

c) abets any person in commission of the offence; or

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d) counsels or procures any person to commit the offence.

(2) Every person who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object is guilty of an attempt to commit the offence intended, whether under the circumstances it was possible to commit such offence or not.

(3) Where two or more persons form an intention in common to carry out an unlawful purpose and to assist each other therein and any of them, in carrying out the common purpose, commits an offence, each of them who knew or ought to have known that the commission of the offence would be a probable consequence of carrying out the common purpose is a party to and guilty of that offence."

Possible Defences

Military Necessity

Since the conventional laws of armed conflict have been drafted with the concept of military necessity in mind, it is not open to a person accused of a war crime to plead this in defence, unless the act in question relates to a breach of a treaty provision, which stipulates that military advantage may be taken into consideration. Some treaty provisions do specify that certain acts may be done if required by military necessity. If a commander performs these acts, then a subsequent assessment of whether or not these acts were required by military necessity must be based on the information available to the commander at the time and not in an abuse of hindsight.

eg GI Art 33 (2)

Personal Necessity

Persons accused of a war crime cannot plead that they acted by way of personal necessity on

account of immediate danger to their own lives or property, although this may be taken into consideration in mitigation of punishment.

Duress

Persons accused of war crimes are entitled to plead that they acted under duress. It may be, for example, that such persons were under an immediate and real fear for their own lives. This would be the exception rather than the rule as it would be very difficult to prove. It would not be sufficient, however, that they were threatened with subsequent disciplinary or punitive action if they failed to commit

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the act in question, although in such circumstances the threat may be considered in mitigation of punishment.

RS Art 31 (1) (d)

Superior Orders

It is no defence to a war crime that the act was committed in compliance with an order.

RS Art 33

An act is performed in compliance with an order which is manifestly unlawful to a reasonable soldier given the circumstances prevailing at the time does not constitute a defence and cannot be pleaded in mitigation of punishment. In R. v Finta the Supreme Court of Canada considered the question of when an order should be considered manifestly unlawful. Mr. Justice Cory stated, “It must be one that offends the conscience of every reasonable, right thinking person: it must be an order which is obviously and flagrantly wrong.”

[1994] 1 S.C.R. 701

The Statute of the International Criminal Court states that:

(1) The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government of or a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:

(a) The person was under a legal obligation to obey orders of the Government or the superior in question;

(b) The person did not know that the order was unlawful; and

(c) The order was not manifestly unlawful.

(2) For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.

RS Art 33

Jurisdiction for the Prosecution of War Crimes

Canadian Law

As a general principle, a member of the CF accused of committing a war crime would not normally be prosecuted in a Canadian court for a “war crime.” Such a CF member would more likely be charged with committing an analogous offence

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under Canadian law (e.g., murder) and would be court-martialed under the Code of Service Discipline.

The Criminal Code of Canada contains several provisions that allow Canadian courts to assume jurisdiction over and try alleged war criminals in a wide variety of circumstances. Section 7 (3.71) states:

“…every person who, either before or after the coming into force of this subsection, commits an act or omission outside Canada that constitutes a war crime or a crime against humanity and that, if committed in Canada, would constitute an offence against the laws of Canada in force at the time of the act or omission shall be deemed to commit the act or omission in Canada at that time if,

(a) that person is a Canadian citizen or is employed by Canada in a civilian or military capacity…”

International Law

Any state into whose hands a person who has allegedly committed a grave breach falls is entitled to institute criminal proceedings, even though that state was neutral during the conflict in which the offence was alleged to have been committed. Since 1945, it has been generally accepted that if a state is unwilling to institute its own proceedings, it may hand the person over to a claimant state on presentation of prima facie evidence that the alleged offender has committed the offence in question.

GI Art 49 (2); GII Art 50 (2); GIII Art 129 (2); GIV Art 146 (2)

While International Law authorizes the trial of accused war criminals, the courts are established in accordance with the national law of the state having custody of the accused. Procedure is also left to that state.

GI Art 49 (2); GII Art 50 (2); GIII Art 129 (2); GIV Art 146 (2)

Currently, ad hoc International Criminal Tribunals have been established under the authority of Chapter VII of the UN Charter in relation to specific conflicts. The International Criminal Tribunal for the Former Yugoslavia has been given jurisdiction to prosecute violations of the LOAC, grave breaches, genocide and crimes against humanity related to the conflict in the Balkans. The International Tribunal for Rwanda has been given jurisdiction to prosecute genocide, crimes against humanity and violations under Additional Protocol II to the Geneva Conventions related to the non-international armed conflict (and genocide) which took place in Rwanda.

On 17 July 1998 the Statute of the International Criminal Court was adopted in Rome by the United Nations Conference on the Establishment of an International Criminal Court. Canada was among the countries that signed the Statute. Once

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the Statute has been ratified by 60 states, the Court will be a permanent body that will judge the most serious crimes of concern to the international community as a whole: genocide, crimes against humanity and war crimes.

RS Art 5

No person may be tried for a war crime unless the crime in question was an offence at the time of its commission in accordance with national legislation or International Law.

RS Art 24 (1)

The four Geneva Conventions obligate the parties thereto to enact such legislation as may be necessary to provide effective sanctions for persons committing or ordering any of the acts which would constitute grave breaches under the Conventions. They also provide that the parties will take the measures necessary to suppress any violation of the Conventions not amounting to grave breaches.

GI Art 49 (1) & (3); GII Art 50 (1) & (3); GIII Art 129 (1) & (3); GIV Art 146 (1) & (3)

Trial Procedures

Pre-Trial Considerations

All military persons in the hands of the adverse party, including alleged war criminals, are to be treated as PWs until it is proved that they are not entitled to such status.

GIII Art 5 (2)

If an alleged war criminal is a PW, that person is entitled to be treated, until conviction, in the same way as any other PW. The PW must be tried by the same tribunal and in accordance with the same rules and procedures as members of the armed forces of the state having custody of the PW.

GIII Arts 84 (2), 105 & 129

The Geneva Conventions provide that all persons accused of grave breaches enjoy the safeguards of a proper trial and defence in accordance with international standards.

GI Art 49 (4); GII Art 50 (4); GIII Art 129 (4); GIV Art 146 (4); AP I Art 75 (7)

Post-Trial Considerations

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GIII provisions relating to the release of PWs do not apply to PWs against whom proceedings for an indictable offence are pending, or who have not completed any punishment to which they have been sentenced.

GIII Art 119 (5)

Trials of Foreign Civilians for War Crimes

Where civilians accused of war crimes are held for trial by a power of which they are not nationals, they are entitled to the safeguards of a proper trial and defence, which shall be not less than those provided for PWs. In addition, they must always be submitted for prosecution and trial in accordance with the applicable rules of International Law. If they do not enjoy more favourable treatment under the Geneva Conventions and AP I, they are to be afforded the fundamental guarantees embodied in Article 75 of the Protocol.

AP I Art 75

WCCAHA, Criminal Code, NDA

Analysis of war crimes :Review of the Finta case and ICTY (Protection of civilians, Rape as war crime, cultural property) Does not fit.

Module 8 Treatment of Civilians

In the Hands of a Party to the Conflict or an Occupying Power

The Geneva Convention Relative to the Protection of Civilian Persons in time of War (GIV) signed in 1949 was the first attempt to provide some international legal protection to the civilian population in time of armed conflict. These GIV provisions have since been reinforced by Additional Protocol I to the Geneva Conventions (AP I), international customary law and other treaties.

Protected Person and Period of Application

Protected Persons

Generally speaking, persons protected by the GIV are those persons who, “at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or occupying power of which they are not nationals.”

GlV Art 4 (1)

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Nationals of neutral or co-belligerent states in the territory of a belligerent state will not be regarded as protected persons so long as normal diplomatic relations exist between their state and the belligerent.

GlV Art 4 (2)

Persons protected as wounded, sick, shipwrecked or as PWs under one of the other Geneva Conventions (GI, GII, and GIII) are not considered protected under GIV as civilians.

GlV Art 4 (4)

The rights secured to protected persons by GIV and by any special agreement that may be concluded under it, may in no circumstances be renounced, either in part or in whole.

GlV Art 8

Exclusions

GIV excludes two classes of persons from its protection:

a. where a belligerent is satisfied that a certain protected person in its territory is definitely suspected of or engaged in activities hostile to the security of the state; and

b. in occupied territory, where a protected person is detained as a spy or saboteur or as a person under definite suspicion of activity hostile to the security of the occupying power.

GIV Art 5 (1) & (2)

If absolute military security so requires, these persons may be deemed to have forfeited the right of communication provided for in GIV. In both cases, however, they are to be treated humanely.

GIV Art 5 (2) & (3)

Period of Application

GIV comes into operation immediately upon the outbreak of hostilities or the commencement of an occupation and ceases in the territory of parties to the conflict on the general close of military operations. In the case of occupied territory, however, it continues for one year beyond the end of such military operations.

GIV Art 6 (1) - (3)

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Protecting Power

GIV is to be applied under the scrutiny of and with the co-operation of the Protecting Power. However, GIV in no way limits the right of the ICRC or other impartial humanitarian organization to fulfil its humanitarian tasks, with the consent of the parties to the conflict.

GIV Arts 9 (1) & 10

General Measures for the Protection of Civilians

Application

This section applies to the whole of the populations of the countries in conflict. It therefore applies to protected persons and all other civilians.

GlV Art 13

Hospital and Safety Zones

Hospital and safety zones and localities may be established either in time of peace or after the outbreak of hostilities. Belligerents may establish such zones and localities in their own territory and, if necessary, in occupied areas for the protection from the effects of war of wounded, sick and aged persons, children under fifteen, expectant mothers and mothers of children under seven. To facilitate the institution and recognition of hospital and safety zones, recourse may be had to the good offices of the Protecting Powers and the ICRC.

GlV Art 14 (1) & (3)

Neutralized Zones

Any belligerent may agree in writing with the opposing force to the establishment in the regions where fighting is going on of neutralized zones, in order to shelter wounded or sick combatants or non-combatants and civilian persons who take no part in hostilities and who perform no work of a military character. The agreement should provide details of the location, administration, provisioning and supervision of the proposed neutralized zone as well as fix its beginning and duration.

GlV Art 15

Special Protection

Special protection and respect must be given to the wounded and sick, the infirm and expectant mothers. As far as military considerations permit, the belligerents must facilitate any steps to search for killed and wounded, to assist shipwrecked

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and other persons exposed to grave danger, and to protect them against pillage and ill-treatment.

GlV Art 16

Civilian Hospitals and Medical Personnel

It is forbidden to attack civilian hospitals. The belligerents must provide them with certificates to the effect that they are civilian hospitals and that their buildings are not used for any purpose, which would deprive them of their protection as such. If so authorized by the State, civilian hospitals should be marked with the distinctive emblem, namely the Red Cross or the Red Crescent. Such marking, so far as military considerations permit, must be made clearly visible to the enemy forces. Civilian hospitals should be situated as far as possible from military objectives.

GlV Art 18

Civilian hospitals continue to enjoy protection so long as they are not made use of to commit acts harmful to the enemy. However, in the event of such misuse, the hospitals remain protected until due warning within a reasonable time limit has been given and remained unheeded.

GlV Art 19

Protection and respect must be extended to persons regularly and solely engaged in the operation and administration of civilian hospitals. Included in this category are persons engaged in the search for, removal, transport and care of wounded and sick civilians. In occupied territory and in zones of military operations such personnel must carry an identity card certifying their status, bearing the photograph of the holder and stamped by the responsible authority. The belligerents must also issue to them special armlets (bearing the Red Cross or equivalent emblem), to be worn while they are carrying out their duties.

GlV Art 20 (1) & (2)

Other persons, engaged in the operation and administration of civilian hospitals, are entitled to protection, and to wear the armlet while employed on their duties. Their identity cards must state what those duties are. The management of each hospital must hold at the disposal of the competent national or occupying authorities an up-to-date list of the personnel employed in the hospital.

GlV Art 20 (3) & (4)

Medical Transports and Aircraft

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Convoys of vehicles or hospital trains on land, and specially provided vessels at sea, conveying wounded and sick civilians, must be protected and respected in the same way as civilian hospitals. Subject to the consent of the State they must bear the distinctive Red Cross or Red Crescent emblem provided for hospitals.

GlV Art 21

Aircraft used exclusively for the removal of wounded and sick civilians, or for the transport of medical personnel and equipment must not be attacked when flying at heights, times and on routes specifically agreed upon between all the belligerents concerned. Such aircraft may be marked with the Red Cross or Red Crescent distinctive emblem. In the absence of agreement to the contrary, flights over enemy or enemy-occupied territory are prohibited. Such aircraft must obey every summons to land, but, after landing and examination, may continue their flight.

GlV Art 22

Free Passage of Supplies

Belligerents must allow the free passage of all consignments of medical and hospital stores and articles necessary for religious worship intended for civilians, including those of an opposing belligerent. This includes all consignments of essential foodstuffs, clothing and tonics intended for children under 15, and expectant and nursing mothers. This obligation is subject to the condition that the belligerent concerned is satisfied that there are no serious grounds for fearing: that the consignments may be diverted from their destination, that control may not be effective, or that the consignments may be of definite advantage to the military effort or economy of the enemy by permitting him to substitute them for goods which he would otherwise have to provide or produce himself.

GlV Art 23 (1) & (2)

Permission for the passage of the consignments may be made conditional on distribution taking place under the local supervision of the Protecting Power. Consignments must be forwarded as rapidly as possible, the belligerent who permits their passage being entitled to prescribe the technical arrangements for their transmission.

GlV Art 23 (3) & (4)

Care of Children

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Children in Afghanistan

Belligerents must make provision for the care of children under 15 who have been orphaned or separated from their families as a result of the conflict. They must ensure the maintenance of such children and facilitate the exercise of their religion, while their education must as far as possible be entrusted to persons of a similar cultural tradition. Belligerents must also facilitate the reception of these children by neutral countries for the duration of hostilities, with the consent of the Protecting Power, if any.

GlV Art 24 (1) & (2) Family Correspondence

All persons in the territory of the belligerent or in territory occupied by the belligerent must be enabled to transmit to and receive from members of their families, wherever they may be, news of a strictly personal nature. There must be no undue delay in forwarding such correspondence.

GlV Art 25 (1)

Censorship

This correspondence is liable to censorship by the belligerent concerned. If the belligerents consider it necessary to restrict such correspondence the restrictions must be limited to prescribing the compulsory use of standard forms containing 25 freely chosen words, to be despatched at the rate of not less than one a month.

GlV Art 25 (3)

Family Enquiries

Belligerents must facilitate enquiries by members of families dispersed as a result of the war, with the object of renewing contact between them. They must also facilitate the work of approved organizations engaged in this task.

GlV Art 26

Provisions Common to the Territories of the Parties

Humane Treatment of Protected Persons

The person, honour, family rights, religious conventions and practices, and manners and customs of protected persons must in all circumstances be

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respected. They must be humanely treated and protected against all acts or threats of violence, and against insults and public curiosity.

GlV Art 27 (1)

Equal Treatment without Adverse Distinction

Women must be specially protected against any attack on their honour, in particular against rape, enforced prostitution or any other form of indecent assault. Subject to special provisions relating to health, age or gender, protected persons must receive equal treatment without any adverse distinction based on race, religion or political opinion. The belligerents may, however take such measures of control or security about protected persons as may be necessary as a result of the war. The presence of a protected person in a particular place or area must not be used to give that place immunity from military operations.

GlV Arts 27 (2) - (4) & 28

Humanitarian Organizations

Every opportunity must be given to protected persons to apply to the Protecting Powers, the ICRC, the local National Red Cross (or equivalent) society or any other organization that may assist them. Within the limits of military or security considerations, the belligerent must provide these organizations with all necessary facilities for given assistance. Belligerents must facilitate as much as possible visits to protected persons not only by delegates of the Protecting Powers and of the ICRC but also by representatives of other organizations ministering to their spiritual or material need.

GlV Art 30

Prohibited Acts

Belligerents are forbidden to use physical or moral coercion against protected persons, in particular with a view of obtaining information from them or from other persons.

GlV Art 31

GIV prohibits taking any measure, which will cause physical suffering to protected persons or will lead to their extermination. This prohibition applies not only to murder, torture, corporal punishment, mutilation or medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other form of brutality, whether applied by civilians or by military personnel. The following are expressly prohibited:

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a. the punishment of a protected person for an offence not committed by that person;

b. collective penalties and measures of intimidation and terrorism;

c. pillage;

d. the taking of reprisals against protected persons and their property; and

e. the taking of hostages.

Aliens in the Territory of a Party to the Conflict

Departure of Aliens

Aliens (who are civilians of enemy nationality) who wish to leave the territory at the outset of or during an armed conflict must be allowed to do so unless their departure is contrary to the interests of the state. “Interests of the state” is broader than concerns regarding security as it may also include economic considerations. Those persons who are permitted to leave must be allowed to bring the necessary funds for their journey and to take with them a reasonable quantity of personal effects. If permission to leave is refused, the persons concerned are entitled to apply to an appropriate court or administrative board designated by the belligerent, for reconsideration of the decision as soon as possible.

GlV Art 35 (1) & (2)

Unless prevented by reasons of security, or if the persons themselves object, the belligerent must, on request, supply the Protecting Power with a statement of the reasons why permission was refused, and a list of the persons affected.

GlV Art 35 (3)

Authorized departures must be carried out under satisfactory conditions as regards safety, hygiene, sanitation and food. All expenses in connection therewith from the point of exit from the country are to be borne by the country of destination or, in case of accommodation in a neutral country, by the state whose nationals are thus benefited. These provisions are not to prejudice any special agreements between the belligerents concerning the exchange or repatriation of their nationals in enemy hands.

GlV Art 36 (1)

Protected persons who are deprived of their liberty pending proceedings against them or while serving a prison sentence must be humanely treated and on their

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release may apply for permission to leave the territory in accordance with the procedure set out above.

GlV Art 37

Treatment of Protected Persons

Subject to security requirements protected persons who remain in the territory of the belligerent must, in general, be treated in accordance with the rules governing the treatment of aliens in time of peace. In particular, they must be allowed to receive any individual or collective relief that may be sent to them, to obtain medical and hospital treatment to the same extent as the nationals of the belligerent, to practice their religion, and, to the extent permitted to nationals, to leave areas particularly exposed to the dangers of war.

GlV Art 38

Employment of Protected Persons

Protected persons who lose their employment as a result of the conflict must be given the opportunity, on a footing of equality with the belligerent's nationals, to find other paid work. If the measures of control and supervision adopted by the belligerent for security reasons prevent such persons from finding paid employment on reasonable conditions, the belligerent must ensure their support and that of their dependants. Protected persons may receive allowances from their home states, from the Protecting Power, or from relief societies.

GlV Art 39

Protected persons may be compelled to work only to the extent, under the same working conditions, and with the same benefits, as the nationals of the belligerent. Protected persons of enemy nationality may be compelled to do only the kind of work which is normally necessary to ensure the feeding, sheltering, clothing, transport and health of the population. They must not be required to do work directly related to the conduct of military operations.

GlV Art 40 (1) & (2)

Internment of Protected Persons

If a state considers that the measures of control over protected persons provided in GIV are inadequate, the most severe additional measure of control that may be imposed by that State is that of assigned residence or internment in accordance with the provisions of GIV.

GlV Art 41 (1)

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A belligerent may order the internment of protected persons, or their being placed in assigned residences, only if security requirements make such a course absolutely necessary. Any person who, through the representatives of the Protecting Power, voluntarily demands to be interned and whose situation renders such a step necessary for his own protection must be interned by the belligerent.

GlV Art 42

A person who has been interned or placed in an assigned residence is entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board of the belligerent. If the internment or placing in assigned residence is maintained, the court or administrative board must periodically, and at least twice yearly, reconsider the case with a view to the favourable amendment of the initial decision if circumstances permit. Unless the protected person objects, the belligerent must as soon as possible notify the Protecting Power of the names of those interned or placed in an assigned residence and of their release there from.

GlV Art 43

Transfer of Protected Persons

Except for their repatriation or return to their country of residence after the cessation of hostilities, protected persons must not be transferred to a state, which is not a party to GIV. Moreover, they may only be transferred to a state, which is a party to GIV if the detaining state has satisfied itself that the receiving state is willing and able to apply GIV.

GlV Art 45 (1) - (3)

Responsible State

In the event of transfers taking place, the accepting State becomes responsible for its application. Should that state fail to carry out its obligations in any important respect, it is the duty of the State which made the transfer either to take effective measures to correct the situation or to request the return of the persons affected.

GlV Art 45 (3)

In no circumstances may a protected person be transferred to a state where he or she has reason to fear persecution on account of his political opinions or religious beliefs.

GlV Art 45 (4)

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Protected persons who are accused of offences against the ordinary criminal law remain liable to extradition in pursuance of extradition treaties concluded before the outbreak of an armed conflict.

GlV Art 45 (5)

Cancellation of Restrictive Measures

As soon as possible after the close of hostilities the belligerents must cancel all remaining restrictive measures regarding protected persons. All restrictive measures affecting their property must also be cancelled, in accordance with the law of the detaining power.

GlV Art 46

Treatment of Internees

General

In many respects the articles contained in GIV as to the treatment of internees are comparable to provisions of GIII concerned with the treatment of PWs. Protected persons may be interned only in accordance with the provisions of GIV and only in cases when they pose a threat to the state in whose hands they are. Internees retain their full civil capacity including the ability to sue and be sued in courts of law. The interning power is obligated to maintain interned persons and to provide them with medical care, all free of charge.

GlV Art 79 - 81 (1) & (2)

Wherever possible, internees of the same nationality, language and customs must be interned together and family members must be housed in the same place and premises.

GlV Art 82

Internment camps must not be located in areas particularly exposed to the dangers of war and, whenever military considerations permit, must be marked for protection against air attack. Internees shall be accommodated separately from PWs and from imprisoned criminals.

GlV Art 83 & 84

The buildings of internment camps must have adequate heat, light and sanitary conveniences. Premises for the holding of religious services must be made available. Canteens must be made available in the camps to purchase local goods unless adequate alternative facilities are available. An adequate number of air raid shelters for the use of internees must be built in every camp.

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GlV Arts 85 - 88

Effective measures must be provided with adequate food, water, and clothing. Internees shall be medically inspected once a month. They shall enjoy complete freedom to practice their own religion. They shall be given the opportunity to participate in educational, intellectual, and recreational pursuits but may not be compelled to participate.

GlV Art 89, 90, & 92 - 94

Internees may not be compelled to work except in a professional medical or dental capacity or for camp maintenance. Wages for work done by internees must be determined on an equitable basis having regard to local conditions and to the fact that the internee is in receipt of free maintenance and medical care.

If labour detachments are sent from the camp to do work, the interning power is still responsible for the protection of the internees even though such detachments may be working for private businesses.

GlV Art 95 & 96

Provisions for camp administration and discipline are set out in detail in GIV.

GIV Arts 99 - 104

Enquiry into Death or Injury of Internees

Whenever the death or serious injury of an internee is caused or suspected to have been caused by a sentry, by another internee, or by any other person, or if the cause of death is unknown, the detaining power must immediately hold an official enquiry into the matter and a report of the result of such enquiry must be sent to the Protecting Power. Should the result of the enquiry point to any person or persons as being guilty, the detaining power must take all necessary steps to ensure the prosecution of those responsible.

GIV Art 131

Release and Repatriation of Internees

Interned persons must be released by the detaining power as soon as the reasons which necessitated internment cease to exist. Internment must also cease as soon as possible after the close of hostilities. However, internees who are in the territory of a belligerent and who are undergoing a sentence of confinement or against whom penal (that is, judicial) proceedings for offences not exclusively subject to disciplinary penalties are pending, may be detained until the close of the proceedings or end of the sentence.

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GIV Arts 132 & 133

Information Bureau and Central Agency Information Bureau

The GIV requires that upon the outbreak of a conflict and in all cases of occupation each of the parties to the conflict must establish an official information bureau to receive and transmit information concerning the protected persons who are in its power. Each party is bound, as soon as possible, to give its bureau full particulars relating to the placing in custody for more than two weeks, the placing in assigned residence, or the internment, of any protected person. It is also the duty of each party to see that its various departments concerned with such matters give the bureau prompt information concerning the protected persons, for example, transfers, releases, repatriations, escape, admissions to hospital, births and deaths.

GlV Art 136

Each national bureau must forward without delay information concerning protected persons to the powers of which such persons are nationals or in whose territory they formerly resided. This is to be done through the Protecting Powers and through a central agency, which is to be set up in a neutral country. The national bureau must also reply to all enquiries concerning protected persons unless sending such information would be detrimental to the person concerned or to his or her relatives.

GlV Art 137 (1) & (2)

Central Agency

A central information agency for protected persons, particularly internees, must be set up in a neutral country. The ICRC may, if it thinks it necessary, propose to the powers concerned the organization of such an agency. The duty of the agency is to collect the information referred to in the preceding paragraphs and to send it to the countries of origin or residence of the persons concerned, unless this course might be harmful to the persons concerned or their relatives.

GlV Art 140 (1) & (2)

Additional Protocol 1

General

AP I includes a number of provisions concerning the treatment of persons in the power of a party to the conflict which go beyond the requirements of GIV. Refugees and stateless persons are deemed to be protected persons within the meaning of GIV. Parties to conflicts are obligated to facilitate the reunion of

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families dispersed as a result of armed conflicts. Certain additional protections are provided for women and children.

AP l Art 73, 74, 76 & 77

Fundamental Guarantees

AP I provides that all persons in the power of a party to the conflict are entitled to at least a minimum of humane treatment without adverse discrimination on grounds of race, gender, language, religion, political discrimination or similar criteria. It states in part:

2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:

a. violence to the life, health, or physical or mental well-being of persons, in particular:

(1) murder;

(2) torture of all kinds, whether physical or mental;

(3) corporal punishment; and

(4) mutilation;

b. outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault;

c. the taking of hostages;

d. collective punishments; and

e. threats to commit any of the foregoing acts.

AP l Art 75 (1) & (2)

Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language that person understands of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.

AP l Art 75 (3)

No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure.

AP l Art 75 (4)

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Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters separated from men's quarters. They shall be under the immediate supervision of women. Nevertheless, in cases where families are detained or interned they shall, whenever possible, be held in the same place and accommodated as family units.

AP l Art 75 (5)

Persons who are arrested, detained or interned for reasons related to the armed conflict shall enjoy those fundamental protections until their final release, repatriation or re-establishment, even after the end of the armed conflict.

AP l Art 75 (6)

In order to avoid any doubt concerning the prosecution and trial of persons accused of war crimes or crimes against humanity, the following principles shall apply:

a. persons who are accused of such crimes should be submitted for the purpose of prosecution and trial in accordance with the applicable rules of international law; and

b. any such persons who do not benefit from more favourable treatment under the Conventions or this Protocol shall enjoy the fundamental protections, whether or not the crimes of which they are accused constitute grave breaches of the Conventions or of this Protocol.

AP l Art 75 (7)

No provision of these fundamental protections may be construed as limiting or infringing any other more favourable provisions granting greater protection, under any applicable rules of international law, to accused persons.

AP l Art 75 (8)

Civil Defence

AP I contains a number of articles providing specific protection to civil defence organizations and their personnel.

AP I Arts 61 - 67

Definition of Civil Defence

Civil defence is defined to mean the performance of specified humanitarian tasks intended to protect the civilian population against the dangers of hostilities or

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disasters and to help it recover from their immediate effects, and to provide the conditions necessary for its survival.

AP l Art 61 (1)

Civilian Civil Defence Organizations Entitled to Protection

Civilian civil defence organizations and their personnel must be respected and protected and are entitled to carry out their tasks, subject to imperative military necessity.

AP l Art 62 (1)

Civilians who respond to a call by the competent authorities to participate in civil defence activities are equally protected, even though they are not members of civil defence organizations, and provided that they carry out their functions under the control of such authorities.

AP l Art 62 (2)

The rights and protection enjoyed by civilian civil defence personnel are also enjoyed by neutral nationals performing such tasks in the territory of a party to the conflict, with the consent of that party, but notification of such assistance must be given to the adverse party.

AP l Art 64 (1)

Buildings and materiel used for civil defence purposes are protected from attack in the same way as other non-military objects. The same exemption applies to shelters provided for the civilian population. Objects which are intended for civil defence purposes may only be destroyed or diverted from this use by the party to which they belong, and shelters provided for or needed by the civilian population must not be diverted from such use or requisitioned by the Occupying Power.

AP l Arts 62 (3) & 63 (6)

Civilian Civil Defence Organizations in Occupied Territory

Civilian civil defence organizations in occupied territory shall be provided with by Occupying Power of such facilities as are necessary to enable them to fulfil their special tasks. They cannot be compelled to perform any task which would interfere with their civil defence activities.

AP l Art 63 (1)

The Occupying Power is not permitted to make any change in the structure or personnel of civilian civil defence organizations if such change might jeopardize

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the efficient performance of their task, nor may it require such organizations to give priority to the interests of nationals of itself as Occupying Power.

AP l Art 63 (1)

Civilian Civil Defence Personnel may Carry Weapons

Civilian civil defence personnel may carry light individual weapons for the purpose of self-defence or maintaining order. If they are operating in areas where land fighting is likely to take place, such weapons must be confined to handguns. If, in such areas, they are in fact carrying other light weapons, they are entitled to protection as soon as their status is established. The Occupying Power is entitled to disarm such personnel for security reasons.

AP l Art 65 (3)

Termination of Protection

As with other protected personnel and organizations, the protection enjoyed by civil defence personnel and organizations ceases if they are used, outside their proper task, for acts inimical to the adverse party.

AP l Art 65 (1)

Civil defence activities carried out under the direction or control of the armed forces, or in cooperation with these forces, or with military personnel attached to civilian defence organizations, or for the benefit of military victims shall not be considered as acts harmful to the enemy provided such benefit is incidental to normal civil defence activities.

AP l Art 65 (2)

Protective Emblem

For the protection of civil defence personnel, their establishments and their materiel, the international distinctive civil defence emblem shall be used in a manner identifiable by the adverse party.

AP l Art 66 (1) - (4)

Medical and religious personnel may be attached to civil defence units and they are then protected by the provisions of AP I relating to the civil defence emblem (see Chapter 4 Annex A) as well as by the distinctive emblem (Red Cross or Red Crescent).

AP I Arts 18 & 66 (1) - (4)

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Military Personnel and Equipment Assigned to Civil Defence Duties

Members of the armed forces may be assigned to civil defence organizations and shall be respected as such, provided they are assigned on a permanent basis and only fulfil civil defence activities and no military duties throughout the duration of the conflict.

AP l Art 67 (1) (a) & (b)

Military personnel assigned to civil defence duties must be clearly identifiable from other members of the armed forces. Such identification shall be by way of the international civil defence emblem prominently displayed and by the issue of civil defence identity cards.

AP l Art 67 (1) (c)

As with civilian civil defence personnel, military personnel assigned to civil defence duties may only carry light individual weapons for maintaining order or self-defence.

AP l Art 67 (1) (d)

Military personnel assigned to civil defence duties must not commit any act, outside their civil defence duties, which may be harmful to the adverse party. They may only perform their civil defence duties within their own national territory.

AP l Art 67 (1) (e) & (f)

Any military buildings or major items of equipment and transport used for civil defence purposes must be clearly marked with the distinctive sign, which shall be as large as appropriate.

AP l Art 67 (3)

If captured by the adverse party, military personnel assigned to civil defence duties do not lose their status as members of the armed forces. They become PWs and must be treated as such. Materiel and buildings belonging to the military but permanently assigned to civil defence purposes and exclusively used for such, are, if they fall into enemy hands, to be treated in accordance with the LOAC. They may not be diverted from their civil defence purpose so long as they are required for this purpose, except due to imperative military necessity, and then only when alternative arrangements for civil defence have been made.

AP l Art 67 (2) & (4)

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Role of the ICRC

ICRC relief actions

ICRC relief actions in Afghanistan

This module gives an overview of the mandate of the ICRC and the ways in which it accomplishes its role. It includes a text and a video generated by the ICRC.

Link to Text: ICRC in Action

ICRC in Action

The International Committee of the Red Cross (ICRC) is a Swiss-based humanitarian organization and founding member of the International Red Cross and Red Crescent Movement (1863). This Movement is composed of the ICRC, National Red Cross and Red Crescent Societies and the International Federation of Red Cross and Red Crescent Societies.

The ICRC is mandated by the international community to be the guardian and promoter of international humanitarian law. We work around the world providing assistance to people affected by armed conflict and other situations of violence.

Who We Are and What We Do

• Try to ensure civilians not taking part in hostilities are spared and protected

• Visit prisoners of war and security detainees

• Transmit messages to and reunite family members separated by armed conflict

• Help to find missing persons

• Offer or facilitate access to basic health care services

• Provide urgently needed food, safe drinking water, sanitation and shelter

• Promote respect for international humanitarian law

• Monitor compliance with and contribute to further development of international humanitarian law

• Help reduce the impact of mines and explosive remnants of war on people

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Module 9

• Support National Red Cross and Red Crescent Societies to prepare for and respond to armed conflict and other situations of violence

The Red Cross and Red Crescent Fundamental Principles of impartiality, neutrality and independence guide our work and enable us to fulfil our humanitarian mission: to

protect the lives and dignity of victims of war and internal violence and to provide them with assistance. In order to assist people affected by armed conflict, we speak with all parties. We support the efforts of arms carriers to respect international humanitarian law or other fundamental rules protecting persons in situations of violence.

We visit prisoners of war and security detainees and register them to prevent disappearances. We work with the authorities to ensure that people deprived of their liberty are treated humanely and according to recognized international standards, which forbid torture and other forms of abuse.

How We Work

Our global presence is adjusted to respond to armed conflicts and other situations of violence. Currently, we have offices in 80 countries with over 12,000 staff worldwide.

Where We Work

Visit our Website

Find Out More

Contact the ICRC delegation nearest you, or your local Red Cross or Red Crescent Society.

Order our catalogue of selected publications and films from our website or by writing to us at the following address:

International Committee of the Red Cross 19 Avenue de la Paix 1202 Geneva, Switzerland T + 41 22 734 60 01 F + 41 22 733 20 57

E-mail: shop.gva@icrc.org www.icrc.org

© ICRC, November 2006

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0728/002 01.2007 50,000

Conclusion

This concludes the DL phase of your LOAC course.

Additional readings are listed on the next slide. They can be used for further preparation prior to the classroom phase or as references in support of individual and syndicate work during that phase of the course.

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Additional Readings

1. Jinks, D. The Temporal Scope of Application of International Humanitarian Law in Contemporary Conflicts, Harvard Program on Humanitarian Policy and Conflict Research-International Humanitarian Law Research Initiative, 2003, pp. 1-9.

2. Israel Supreme Court Targeting Case, December 2005.

3. Karnavas, M.G. Command/Superior Responsibility: A Brief Analysis of the Emerging Jurisprudence from the AD HOC International Criminal Tribunals.

4. Mohamedou, M.M.O. Non-Linearity of Engagement-Transnational Armed Groups, International Law, and the Conflict between Al Qaeda and the United States, Harvard Program on Humanitarian Policy and Conflict Research, 2005, pp. 1-39.

5. Sassoli, M. Legitimate Targets of Attacks Under International Humanitarian Law, Harvard Program on Humanitarian Policy and Conflict Research-International Humanitarian Law Research Initiative, 2003, pp. 1-10.

6. Schmitt, M.N. War, Technology, and International Humanitarian Law, Harvard Program on Humanitarian Policy and Conflict Research-Occasional Paper Series, no. 4, 2005, pp. 1-62.

7. Watkin, K.W. Humanitarian Law and 21st-Century Conflict: Three Block Wars, Terrorism, and Complex Security Situations.

8. Watkin, K.W. Combatants, Unprivileged Belligerents and Conflicts in the 21st Century, Harvard Program on Humanitarian Policy and Conflict Research-International Humanitarian Law Research Initiative, 2003, pp. 1-19.

9. Watkin, K.W. Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict, The American Journal of International Law, vol. 98, no. 1, 2004, pp. 1-34.

10. Watkin, K.W. Canada/United States Interoperability and Humanitarian Law Issues: Land Mines, Terrorism, Military Objectives and Targeted Killing, Duke Journal of Comparative & International Law, 2005, pp. 281-314.

11. Watkin, K.W. Warrior Without Rights? Combatants, Unprivileged Belligerents, and the Struggle Over Legitimacy, Harvard Program on Humanitarian Policy and Conflict Research-Occasional Paper Series, no. 2, 2005, pp. 1-77.

12. Watkin, K.W. Assessing Proportionality: Moral Complexity and Legal Rules, Year of International Humanitarian Law, vol. 7, 2004, pp. 3-53.

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