1. Protected Persons and Objects

IHL clearly defines the persons and objects that must be protected in times of armed conflict, both international and non-international. It prohibits intentionally launching attacks and reprisals against them. This is based on the cardinal principle of distinction.

The following attacks are prohibited:

•Attacks against the civilian population as such, and acts or threats of violence, the primary purpose of which is to spread terror among the civilian population (API, art. 51(2); APII, art. 13(2) and CIHL Rules 6, 7 and 10).

•Attacks against civilians by way of reprisals (API, art. 51(6), CIHL Rule 147). It follows that parties to the conflict may not direct the movement of civilians in order to attempt to shield military objectives from attacks or to protect military operations, nor may they use the presence of a protected person to render certain points immune from military operations (GCIV, art. 28 and API, art. 51(7)).

•Attacks against civilian and cultural objects and property, places of worship, objects indispensable to the survival of the civilian population, and works or installations containing dangerous forces which may cause damage to the natural environment and thereby prejudice the health or survival of the population (API, arts. 52-56; APII, arts. 14-15, CIHL Rule 38). IHL defines the distinctive emblems and signs that must be used to signal the presence of such protected objects;

•Attacks against medical units or facilities and personnel (GCI, art. 19; GCII, art. 23; GCIV, art. 18; API, arts. 12 and 15 and APII, arts. 9 and 11);

• Attacks directed against medical and religious personnel and objects displaying the distinctive emblems of the Geneva convention (CIHL Rule 30);

•Attacks on demilitarised or neutral zones and non-defended places (GCI, art. 23; GCIV, art. 15 and API, arts. 59 and 60, CIHL Rules 35, 36 and 37);

•Attack against personnel and objects involved in a peacekeeping mission in accordance with the UN Charter, as long as they are entitled to the protection given to civilians and civilian objects (CIHL Rule 33).

The Rome Statute of the ICC affirms that such intentional attacks constitute war crimes, whether committed during international or non-international armed conflicts (arts. 8(2)(b) and 8(2)(e)). It also states that such attack may constitute crimes against humanity “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (art. 7 of the Rome Statute).

It should be recalled that in certain circumstances the general protection of the civilian population as well as the specific protection of the medical mission provided by IHL may be partially lost because of the direct participation of civilians in the hostilities or because of the use or misuse of civilians’ objects to commit acts harmful to the enemy. However, this is not sufficient to render an attack on them lawful. The rules of proportionality and precaution remain applicable, as do other conditions necessary to assess situations of effective loss of protection of civilian persons and objects ( infra , section 2).

➔ Civilians ▸ Humanitarian and relief personnel ▸ International Criminal Court ▸ Medical services ▸ Protected objects and property ▸ Protected persons ▸ War crimes/Crimes against humanity

2. Indiscriminate or disproportionate attacks

The IHL prohibition of launching indiscriminate or disproportionate attacks (a) involves other legal elements, such as the identification of a legitimate military objective and the respect of the obligation of proportionality and precaution in any attack (b).

1. Precautionary Measures

Those planning or deciding and attack shall respect the following obligations:

-take all feasible precautions to ensure that the objectives to be attacked are neither civilians nor civilian objects, that they do not enjoy specific protection but are military objectives (API, art. 57(2)(a)(i)) and CIHL rule 16);

-take all feasible precautions in the choice of means and methods of combat with a view to avoiding, and in any event to minimising, incidental loss of civilian life, injury to civilians, and damage to civilian objects (API, art. 57(2)(a)(ii) and CIHL rule 17);

-refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated (API, art. 57(2)(a)(iii) and CIHL rule 18).

•An attack will be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to a specific protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated (API, art. 57(2)(b) and CIHL rule 19);

•Effective advance warning shall be given of attacks that may affect the civilian population, unless circumstances do not permit (API, art. 57(2)(c) and CIHL rule 20); • When there is a choice between several military objectives which would result in a similar military advantage, the attack selected shall be the one which is expected to cause the least danger to civilian life and to civilian objects (API, art. 57(3) and CIHL Rule 21);

•Nothing in article 57 of the Additional Protocol I of 1977 may be interpreted as authorising any attack against the civilian population or civilian objects (API, art. 57(5)).

2. Duty of Commanders

Commanders have an obligation to respect the proportionality and precaution requirements described here in their targeting process and in the planning and launching of attacks. Commanders are also responsible for the conduct of their subordinates with respect to these rules. They therefore have a duty to ensure that members of the armed forces under their command, as well as other persons under their control, are aware of and comply with their obligations under the Geneva Conventions and Additional Protocols. If members of the armed forces violate IHL, commanders must take the necessary measures to put an end to such acts and to take the necessary disciplinary or penal action that is necessary against the perpetrators of such violations.

➔ Duty of commanders

Beyond the broad agreement on the obligations of distinction, proportionality and precaution, their practical assessment and implementation is left to the responsibility of military commanders on a case-by-case basis in each situation.

International jurisprudence on this issue is still in its infancy and not fully consolidated. For a long time, this issue remained a strictly military matter, dealt only by national military judges, who have access to tactical information relevant to the case and decide on a wider range of disciplinary to criminal sanctions. International criminal judges are bound by the highest threshold of criminal proof, leaving aside other forms of command responsibility. Moreover, they still lack effective access to the factual military element that informs the decision of military commanders in each concrete attack as to its legitimate, proportionate, and precautionary nature. While military judges were part of the Nuremberg and Tokyo international criminal tribunals, the current international criminal tribunals have civilian judges. This is a positive development in view of the civilian victims of war, but it will take time to properly link military duties with criminal responsibility. It is a fundamental effort to avoid opaque and abusive military interpretations of their duty of proportionality and precaution towards civilian casualties, which can concretely empty the duty to protect civilians in armed conflict.

➔ Civilians ▸ Distinctive (or protective) emblems, signs, and signals ▸ Duty of commanders ▸ Humanitarian and relief personnel ▸ Human Shield ▸ International Criminal Court ▸ International humanitarian law ▸ Medical services ▸ Methods (and Means) of warfare ▸ Military necessity ▸ Military objectives ▸ Proportionality ▸ Protected objects and property ▸ Protected persons ▸ Reprisals ▸ War ▸ War crimes/crimes against humanity

International judges have had to analyse the legality of attacks in terms of compliance with the principles of distinction, precaution, and proportionality between military necessity and harm to civilians. So far, they have been rather reluctant to get involved in such matters, which require an understanding of and access to the military targeting process for each situation to be prosecuted. International criminal jurisprudence in this area remains a work in progress.

It should be recalled that the standard of proof required by the criminal tribunal with regard to the knowledge and intent of the commander goes beyond the threshold of responsibility of the commander deriving from IHL. If it is not possible to establish beyond reasonable doubt the intent and knowledge necessary to establish the criminal responsibility of a commander, it is still possible to hold that person accountable for negligence and dereliction of duty.**

According to the jurisprudence of the international criminal tribunals, the principles of distinction, precaution and proportionality set out in articles 57 and 58 of the Additional Protocol I of 1977 are now part of CIHL, not only because they specify and give concrete form to general, pre-existing norms, but also because they do not appear to be contested by any State, including those that have not ratified the Protocol (*Prosecutor v. Kupreškić et al. , Case no. IT-95-16-T, Judgment , 14 January 2000, para. 524 (confirmed in Prosecutor v. Tihomir Blaškić , Case no. IT-95-14-T, Judgment , 3 March 2000, para. 162).

*Assessing the civilian or military nature of a target requires an ad hoc determination by commanders that can be reviewed by judges in a court of law.

*In 2000, following the NATO bombing campaign against the Federal Republic of Yugoslavia, the Prosecutor of the ICTY set up a special committee to review potential war crimes by NATO. In the conclusion of its review the ICTY admits that it may be easier to spell out a general principle of proportionality, rather than to apply it to a specific situation, because a balancing exercise must be done between different values and quantities. In the NATO bombing campaign against Serbia, the ICTY affirmed that the issue of whether the principle of proportionality was respected should be analysed on a case-by-case basis, according to an objective criterion: the “responsible command” assessment. Therefore, the ICTY refused to rely on an assessment made by a human rights organization. Rather, it considered that the questions that remain unresolved once one decides to apply the principle of proportionality include the following:

1. What are the relative values to be assigned to the military advantage gained and the injury to non-combatants and/or the damage to civilian objects?

2. What do you include or exclude in totalling these sums?

3. What is the standard of measurement in time or space?**

   4. To what extent is a military commander obligated to expose his own forces to danger in order to limit civilian casualties or damage to civilian objects? ( Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia , ICTY, 13 June 2000, para. 49).

   In the ICTY Kupreškić case, the Trial Chamber’s ruled in its 2000 judgement that “[a]ny incidental and unintentional damage to civilians must not be out of proportion to the direct military advantage gained by the military attack. In addition, attacks, even when they are directed against legitimate military target, are unlawful if conducted using indiscriminate means or methods of warfare, or in such a way as to cause indiscriminate damage to civilians”. In the same case, the Trial Chamber further clarifies that: “[i]t may happen that single attacks on military objectives causing incidental damage to civilians, although they may not raise doubts as to their lawfulness, nevertheless do not appear on their face to fall foul per se of the loose prescription of article 57 and 58 (or the corresponding customary rules). However, in case of repeated attacks, all or most of them falling within the grey area between indisputable legality and unlawfulness, it might be warranted to conclude that the cumulative effect of such acts entails that they may not be in keeping with international law. Indeed, this pattern of military conduct may tun out to jeopardize excessively the lives and assets of civilians, contrary to the demands of humanity” ( Kupreškić, Judgment , paras. 524 and 526).

   *•Launching an indiscriminate or disproportionate attack

   There have been virtually no guilty verdicts for launching disproportionate attacks in international criminal tribunals. The Gotovina trial at the ICTY was one of them, although the Trial Chamber’s 2011 decision was later overturned by the Appeals Chamber in 2012. In this case, the Trial Chamber was asked to rule on the criminal responsibility of a commander of the Croatian armed forces for violations of the rules of distinction, proportionality and precaution in relation to civilian casualties caused by the 1995 military offensive to regain control over the Krajina region. According to the Trial Chamber, the military operation resulted in 526 Serb casualties, including 116 civilians casualties, in addition to 211 casualties among Croatian soldiers and policemen and 42 Croatian civilians casualties and to the deportation of at least 20,000 Serbs (Prosecutor v. Ante Gotovina, Ivan Čermak and Mladen Markač, Case no. IT-06-90-T, Judgment, 15 April 2011, paras. 1710 and 1711).

   In is judgment, the Trial Chamber used a 200 metres standard to prove the violation of the principle of distinction. This standard was provided to the Prosecutor by a career Dutch artillery officer, Lieutenant Colonel Koening. According to this standard, artillery shells landing more than 200 metres from a military objective would be considered to have been aimed at a civilian object and therefore unlawful and indiscriminate ( Gotovina et al., Judgment , paras. 1898, 1903, 1906, 1911, 1935 and 1943). Along with other evidence, this 200 metres standard was used to show that despite the presence of some military objectives in the town of Knin, the commander has treated the entire town as a target. The Trial Chamber ruled that this interpretation was supported by the general impression that in the case of Knin, the shelling impacted all over town and was indiscriminate. This interpretation is considered to be consistent with the insufficient consideration given to the risk of civilian casualties and injuries and damage to civilian objects in the disproportionate shelling of two locations where the HV believed Martić was present (para. 1911).

   The Trial Chamber also ruled on the breach of proportionality, finding that the attack on Martić ’s house was disproportionate because it created a risk to civilians that was excessive in relation to the anticipated military advantage. ( Gotovina et al., Judgment , para. 1910).

   However, the Appeals Chamber unanimously ruled that the 200 metres standard used by the Trial Chamber to determine the indiscriminate nature of the attack was not based on the law or on the evidence presented during the trial and that the Trial Chamber erred in using this standard as part of its analysis of the impact of the attack (Prosecutor v. Ante Gotovina and Mladen Markač , Case no. IT-06-90-A, Judgment , 16 November 2012, para. 61). On the basis of this single argument, the Appeals Chamber limited itself to overturning the Trial Chamber’s judgment and acquitting Gotovina , without validating or proposing any other criteria for assessing indiscriminate attacks.

   The Appeals Chamber also criticised the Trial Chamber’s assessment of proportionality, stating that it was not based on a concrete assessment of comparative military advantage and did not make any findings on the resulting harm or casualties to civilians ( Gotovina, Judgment , para. 82).

   In the Prlić et al . case, the ICTY Appeals Chamber noted that the incidental casualties expected to be caused by the conduct of military operations must not be disproportionate to the concrete and direct military advantage anticipated before the attack, even if the principle of distinction does not exclude the possibility of legitimate civilian casualties ( Prlić et al. , Case no IT-04-74-A, Judgment , 29 November 2017, para. 561). In this regard, the Appeals Chamber also stated that shelling affecting a densely populated area does not in itself mean that the attacks were indiscriminate or disproportionate, as collateral damage may occur even if the population is not targeted and the belligerent acts with all possible caution/care. CIHL does not imply that collateral damage is per se unlawful (para. 291).

   The Appeals Chamber overturned a guilty verdict for launching a disproportionate attack. The Trial Chamber’s judgment argued that the destruction of the old bridge by HVO’s forces was recognised as a part of the “crime of wanton destruction of cities, towns or villages, or devastation not justified by military necessity”. The Trial Chamber considered that even if the old bridge was a legitimate military target at the time, the psychological impact on the Muslim civilian population of Mostar was “disproportionate to the concrete and direct military advantage expected by the destruction of the Old Bridge.” (P rosecutor v. Prlić et al. , Case no. IT-04/74-A, Judgment and Opinion, 29 November 2017, para. 406). The Appeals Chamber overturned this decision in 2017, holding that since the Trial Chamber had qualified the old bridge as a legitimate military objective, a necessary element of the crime, and therefore the absence of a destruction of property that was not justified by military necessity was not met. ( Prlić et al., Judgment , 29 November 2017, para. 411).

   In the Katanga case, the Trial Chamber II ruled that the indiscriminate effect of certain methods and means of warfare used by the Lendu and Ngiti forces in the attack on a village in Bogoro constituted an attack against the civilian population. In reaching this decision, the Chamber considered, inter alia, the timing of the attack, the use of certain weapons and the indiscriminate shooting of civilians and soldiers. ( Prosecutor v. Germain Katanga , Case no. ICC-01/04-01/07, Judgment pursuant to article 74 of the Statute , 7 March 2014, para. 893).

   In the decision on the Prosecutor’s request for authorisation to investigate the situation in Georgia at the ICC, the Court identified the use of certain weapons, methods and means of warfare as indicative of an indiscriminate or disproportionate attack. The ICC emphasised that civilians and civilian objects were indiscriminately and disproportionately attacked by both Georgian and Russian armed forces through the use of cluster munitions in populated areas, and through the “indiscriminate and disproportionate attacks with aerial, artillery and tank fire strikes against civilians and civilian objects”. ( Situation in Georgia , Case no. ICC-01/15-12-Anx1, Decision on the Prosecutor’s request for authorization of an investigation , 24 May 2021, paras. 26-28).

   In the Popovic case, the Appeals Chamber upheld the Trial Chamber’s finding that the BSF’s military action constituted an unlawful attack against a civilian population which was widespread and systematic in nature, in view of its indiscriminate and disproportionate character. The Court held that the indiscriminate targeting of all members of a column despite the presence of civilians constitutes an indiscriminate attack. ( Prosecutor v. Popovic et al. , Case no. IT-05-88- A, Judgment , 30 January 2015, para. 566).