4.1 The Lotus Principle, Human Rights, and the Relevance of the Relationship between the Jus ad Bellum and Jus in Bello
nato roe authorises the nato forces participating in an operation to use force in defined circumstances. As explained in Chapter 2, roe are political and operational restraints on the otherwise lawful use of force. In addition, they ensure that the forces operate within the realm of applicable law. In particular, the use of roe is a tool for the State to avoid military personnel taking life arbitrarily. This has been stressed, inter alia, by Gary Corn: “roe have evolved as a primary means of meeting this obligation [i.e. to ensure that the use of force by State agents comply with international law], and as such must be consistent with the international law standards governing the prohibition against arbitrary killings”.1 The focus of Part 2 of the book is to identify the primary rules regulating the use of deadly force under nato roe during an armed conflict. To what extent are States bound by rules in their use of military force? Do States need an actual legal basis to use force, or is it sufficient that the use of force is not expressly prohibited? Which rules does the use of force authorised by roe need to comply with in order to be lawful?
International law governs relations between independent States. The rules of law binding upon States therefore emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of law and established in order to regulate the relations between these co-existing independent communities or with a view to the achievement of common aims. Restrictions upon the independence of States cannot therefore be presumed.2
Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable. 3
One of the areas where international law imposes limitations is the law of armed conflict (loac). Triggered by the occurrence of an armed conflict,4 this legal regime is intended to regulate relations between belligerent States and the conduct of hostilities.5 Historically, the focus was on reducing unnecessary suffering among the military forces, especially by extending “the humanitarian hand of assistance to all wounded combatants”.6 In the aftermath of the Second World War, the rules were considerably expanded. Most notably, the protection of civilians was significantly enhanced. Today, the main purpose of loac is to protect all victims of armed conflict and regulate the conduct of hostilities.7 Furthermore, the rules have evolved from being prohibitive to both provide limitations and entitlements or authorisations.8 For instance, AP I Article 43(3) makes it clear that “combatants (…) have the right to participate directly in hostilities”.9 This evolution of loac is illustrative of a general shift in international law, from the Lotus approach of merely limiting actions of States to greater focus on legal justifications for acts adversely affecting rights of individuals.
Another important example of this trend is the evolution of international human rights law (ihrl), which imposes limitations and duties on the State vis-à-vis its citizens or persons otherwise under its jurisdiction. The most relevant implication of ihrl for the current topic is that “a deprivation of life that lacks a legal basis or is otherwise inconsistent with life-protecting laws and procedures is, as a rule, arbitrary in nature”.10 As a result, military forces, whether acting as State actors or individuals, will not be able to employ unfettered force.
The prohibition on arbitrary deprivation of life applies at all time, including during armed conflict.11 As will be explained in Section 4.2, it plays a central role in ihrl, and arguably in international law in general.12 States are not free to act as they wish with regard to individuals; they must refrain from arbitrarily depriving individuals of their lives. According to the icj, the test of what is arbitrary deprivation of life depends on the applicable lex specialis.13 The details of the exceptions to the prohibition on arbitrary deprivation of life are in other words not set out in ihrl, but rather in applicable national and international law. This point is particularly important for the topic of this book, that is, the identification of the appropriate legal basis for the use of force authorised by roe. The references to and focus on the prohibition on arbitrary deprivation of life do not suggest that ihrl regulates the use of force during armed conflict. During armed conflicts, the law of armed conflict, with the concepts of ‘lawful acts of war’ and ‘combatant immunity’, provides military forces with further authorities for using force that would otherwise violate human rights (see Chapter 5). loac is the lex specialis of armed conflict, which means that it is the primary legal regime governing the use of force by military forces participating in an armed conflict.14 The use of force during armed conflict causing death or serious injury must comply with loac in order to be lawful, unless it occurrs in self-defence or as part of law enforcement.
Self-defence is both the more general exception to the prohibition on arbitrary deprivation of life and the narrower one: it applies to everyone, but is formulated as an exception, to be applied as a measure of last resort. Furthermore, as a result of loac being the primary legal regime for the use of force during armed conflict, for military forces participating in an armed conflict, the scope for applying what is essentially an exception to the human right to life is limited.15 Despite its relatively small role during armed conflict, it is nonetheless important. It permits the use of force in situations where life it at stake, but loac does not provide the necessary authorities to act. Furthermore, because individual service members arguably retain a right to life despite being military or participating in an armed conflict, roe cannot be so restrictive that it prohibits forces to defend themselves, thereby arbitrarily depriving the military forces of their life.16
Finally, although nato generally does not do law enforcement operations,17 military forces may be granted further authorities by way of being State agents. For forces operating in another State, this requires authorisation based on host nation legislation.18 Because such authorities must comply with ihrl, the use of deliberate lethal force may only be permitted in situations where this is absolutely necessary to protect human life.19 Due to the armed conflict focus of the book, law enforcement will not be examined further; however, the scope for using force that causes harm to civilians beyond what loac permits is examined in Chapter 10.
The approach taken to the question of legal basis is influenced by the perception of the relationship of the jus in bello or loac to the jus ad bellum. If these two areas are considered separate, as suggested in Section 4.3, the application of loac is determined solely on the basis of the factual situation, irrespective of the perceived responsibility for starting the armed conflict, thereby ensuring equal application of the rights and obligations therein. Alternatively, the jus ad bellum may be viewed as the legal basis for the use of force both at the outset and during the armed conflict.20 For instance, if one State attacks another in violation of Article 2(4) of the UN Charter,21 the military forces fighting on behalf of that State would be perceived as acting unlawfully, regardless of their compliance with loac. Those supporting the latter approach may consider lawful all use of force that is necessary and proportionate to achieve the jus ad bellum aim of the operation, unless prohibited by loac or other applicable law. As a result, there is in their view no need for connecting the use of force roe with a rule found in loac or elsewhere, as is done in this book. However, as will be further explained in Section 4.3, this approach fails to take into account both the lessons learned from the post-Second World War trials, where it was made clear that German forces who complied with loac had not acted unlawfully,22 as well as the evolvement of ihrl.
4.2 The Right to Life and Prohibition on Arbitrary Deprivation of Life
4.2.1 Introduction
International human rights law (ihrl) imposes obligations on the State in the respect to persons under its authority or control.23 They require the State and State organs to protect the human rights of individuals within its jurisdiction, ensure that other individuals or groups do not violate the human rights of those individuals, and ensure that all such individuals have the opportunity to obtain their human rights, such as the right to a fair trial.24 Human rights are relevant for nato operations in two ways: as concurrently applicable law during an armed conflict, and as the primary body of international law regulating activities beyond the context of armed conflict, to which loac does not apply.25 The applicability of human rights during armed conflict and its relationship to loac is further examined in Section 4.4. The intention with this chapter is not to repeat the debate on what is an extensively covered topic,26 but to provide an explanation for the approach taken in this book to the application of ihrl, in particular the right to life, during armed conflict.
Because nato States do not transfer full command for their forces to nato,27 the forces remain under national authority. The question whether States continue to have ‘effective control’28 over their forces, as debated in cases arising from UN operations, does therefore not arise.29 It has increasingly been suggested that nato as an international organisation may have international responsibility for the acts of nato forces or nato headquarters, which could include human rights obligations; however, this issue is beyond the scope of this book.30
The focus of this book is on the operational authorities (roe) and legal bases for using force against another person during armed conflict. Because the use of force against individuals would generally violate their right to life, these legal authorities are necessarily influenced by the recognised exceptions to the right to life. The right to life is one of the most fundamental human rights,31 and it is codified in all major international human rights conventions.32 It is also reflected in domestic legislations, such as in the crime of murder. Although the right to life is viewed as a peremptory right,33 it is not absolute: only arbitrary deprivation of life is prohibited.34 The prohibition on arbitrary deprivation of life has now become customary international law,35 and plays an important role in military operations in two respects: as a limitation on the use of force by military forces, and as the defining parameters for the military forces’ right to defend themselves.
ihrl impose procedural and substantive obligations on States. The procedural obligation relevant to the right to life is the duty to undertake effective investigation where there has been a deprivation of life as a result of the use of force.36 Because this aspect of the obligation is unlikely to affect the decision or authorisation to use force, it is not further examined here.37 The substantive obligations are twofold: the obligation of the State to take measures to protect the right of persons under its jurisdiction, such as the criminalisation of the use of force, and a limitation on the actions of State actors.38 Because military forces may use force both on the State’s territory and abroad, the question of extraterritorial application of human rights obligations is also relevant.
The human rights regimes most relevant for nato operations are those of the echr and iccpr. Article 2 of the echr prohibits intentional deprivation of life that is not absolutely necessary for an exhaustive list of reasons. In addition, the echr allows in Article 15(2) for derogation from Article 2 on the basis of lawful acts of war committed during armed conflict.39 The iccpr Article 6 prohibits arbitrary deprivation of life. Article 6 is non-derogable,40 but as will be explained below, lawful acts of war have been interpreted as not being arbitrary. The practical implications of the two approaches are very similar,41 and the examination of the prohibition on arbitrary deprivation of life will therefore consider them together.
The application of ihrl during armed conflict will to some extent be affected by the type of conflict, both with regard to the question of jurisdiction and the relationship between loac and human rights.42 ihrl are most likely to apply in situations of occupation and niacs. A State involved in an occupation will exercise control over public authorities within the occupied territories and will therefore have jurisdiction for the purposes of human rights application.43 If it is a niac occurring within the territory of a State, the human rights obligations of that State will apply in full, unless derogations are made.44 Furthermore, the rules for niacs in general are less extensive and detailed than for iacs.45 If it is argued that “where ihl treaties are silent, human rights law might be offered as an answer”,46 human rights would play a significantly greater role in this type of conflict.47
The lack of treaty rules for niacs may, however, give a skewed impression of the extent to which loac rules are applicable and accordingly the scope for applying ihrl. Many of the conduct of hostilities rules relevant for this book found in treaties regulating iacs apply to all conflicts as customary international law. This will arguably reduce the scope of the application of ihrl.48 Admittedly, the lack of clarity, for example with respect to the concept of ‘direct participation in hostilities’, begs the question of whether loac alone may be used to determine the legality of the use of force.49 This has led Lubell to suggest that in niacs, where the distinction between civilians and lawful targets is less clear, attempts should be made to capture rather than kill opposing forces.50 However, although the concept of ‘direct participation’ is complicated to apply, this exception from civilian protection is clearly founded in both treaty and custom, and is equally applicable in niacs.51 The approach adopted in this book is that the right to life will not be violated if loac is complied with; this is equally the case in both international and non-international armed conflicts.52
4.2.2 Prohibition on Arbitrary Deprivation of Life
In General Comment 36, deprivation of life is defined as involving “a deliberate or otherwise foreseeable and preventable life-terminating harm or injury, caused by an act or omission”.53 The ECtHR has emphasised that the deprivation of life need not be intentional. It also encompasses “‘use force’ which may result, as an unintended outcome, in the deprivation of life.”54 Because it is a fundamental right, it is important that the circumstances in which life may be deprived be strictly construed.55 The use of force must be absolutely necessary, which according to the McCann case entails that “a stricter and more compelling test of necessity must be employed than that normally applicable when determining whether State action is ‘necessary in a democratic society’”.56 Furthermore, it has been interpreted to imply that the use of force must be “strictly proportionate to the achievement of permitted aims”.57 This entails, inter alia, that the use of lethal force must be a measure of last resort, the amount of force used be limited to that strictly needed, and the force must be directed as far as possible only against the person of interest, for instance the attacker in a self-defence situation.58 According to the Human Rights Committee (hrc), the deliberate use of potentially lethal force cannot be proportionate if directed at a person “who does not pose a serious and imminent threat to the lives or bodily integrity of others”.59 Some States do accept the use of lethal force to protect critical infrastructure; however, their critical nature is usually a result of the serious consequences an attack on the object would have for persons.
Article 2 of echr sets out three exclusive permissible aims for the use of force: in defence of any person from unlawful violence, to effect an unlawful arrest or prevent the escape of a person lawfully detained, or to quell a riot or insurrection.60 The hrc has used the same categories to explain the circumstances in which deprivation of life will not be arbitrary under iccpr Article 6.61 In addition, it is recognised that deprivation of life consistent with loac will not be arbitrary.62 This was confirmed by the icj in the Nuclear Weapons Advisory Opinion: “In principle, the right not arbitrarily to be deprived of one’s life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities”.63 This includes deprivation of life both caused by the use of force by a combatant towards a lawful target, and resulting from incidental harm to civilians and other protected persons.64
The use of force by nato forces must therefore either be directed at lawful targets in accordance with loac, or it must be based on a different legal authority permitting the use of force to achieve one of the abovementioned permitted aims.65 Unless the forces are tasked with law enforcement duties, the most relevant aim is to defend a person from unlawful violence. Because the use of force outside the ambit of loac must be absolutely necessary, force may only be used where there is “a real and immediate danger to life and limb”,66 and lethal force may only be used if that threat is immediate.67 The legality of the use of lethal force in such circumstances will therefore require sufficient preparations in the planning of the operation to minimise the risk of loss of life to the greatest extent possible, for instance, by considering the possibility of evacuating civilians and by analysing the effect of the proposed weapons.68 The requirement that lethal force only may be used as a matter of last resort has to be taken into account both during the planning stage and during the execution of the operation. Furthermore, the use of force must be proportionate to the aim of saving lives, taking into account both the life of the “target” and of innocent bystanders, in addition to the military forces involved.69 However, the ECtHR has emphasised that “the obligation to protect the right to life must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities”.70 For instance, harm to innocent bystanders does not per se violate their right to life, but the threshold of both necessity and proportionality will be high,71 and the harm must be reasonable, which excludes harm that is intentional or reckless.72 Because incidental harm to innocent bystanders resulting from military forces using force beyond the scope of loac is most likely to arise in the context of self-defence, this complex issue is examined in detail in Chapter 8.73 As a result of the right to life of persons not participating in the armed conflict, the scope for using lethal force in situations not permitted by loac is limited.
In addition to restricting the amount of force military forces may use, the right to life also creates obligations owed to the members of the State’s military forces.74 The contention that “the combatant trades his right to life for the right to kill”75 is, in other words, inaccurate. Individual members of the nato forces are also citizens of a State who enjoy human rights.76 However, the ECtHR has explained that “when interpreting and applying the rules of the Convention (…), the Court must bear in mind the particular characteristics of military life and its effects on the situation of individual members of the armed forces”.77
we are of the view that soldiers or combatants are expected to exercise fortitude and a greater degree of resistance to a threat than civilians, at least when it is their own lives which are being threatened. Soldiers, by the very nature of their occupation, must have envisaged the possibility of violent death in pursuance of the cause for which they fight. The relevant question must therefore be framed in terms of what may be expected from the ordinary soldier in the situation of the Appellant. What is to be expected of such an ordinary soldier is not, by our approach, analysed in terms of a utilitarian approach involving the weighing up of harms. Rather, it is based on the proposition that it is unacceptable to allow a trained fighter, whose job necessarily entails the occupational hazard of dying, to avail himself of a complete defence to a crime in which he killed one or more innocent persons.78
Because this case concerned the defence of duress, it should not be interpreted to mean that self-defence would not be available. In fact, as will be explained in Section 6.3.1.2 concerning self-defence in international criminal law, courts have been willing to consider pleas of self-defence made by military forces, even for situations arising during armed conflict. As Stephens argues, “the right to life ensures that governments cannot place their military forces in harms [sic] way and withhold them the right to defend themselves”.79 The importance of the extract is its indication that military forces are expected to accept a higher degree of risk than civilians.
Unlike civilians, military forces are lawful targets and have accepted the risk to life that combat entails.80 Furthermore, unlike civilians, military forces have a right to participate in hostilities, and their use of force in accordance with loac will be considered lawful.81 In their recommendation on the human rights of armed forces, the Council of Europe explains in the context of the right to life that “[m]embers of the armed forces should not be exposed to situations where their lives would be avoidably put at risk without a clear and legitimate military purpose or in circumstances where the threat to life has been disregarded”.82 Unavoidable risk with a clear and legitimate military purpose will, in other words, not be considered a violation of military forces’ right to life.83 The right to life of military forces, and hence the scope of application of self-defence, is therefore more restrictive than for civilians. As will be explained in detail in Chapter 8, their status as military forces will, among other things, affect the assessment of whether it was necessary to use force. Arguably, the risk must be more immediate and the harm more severe.84 Furthermore, the application of self-defence that requires the initial attack must be unlawful, which will not be the case if those attacking are combatants directing their force at lawful targets.85
Where the risk to the military forces is immediate and severe, however, they must be permitted to defend themselves. As will be explained in Section 8.2.10, military forces are not expected to be killed without resisting, since this would be tantamount to suicide. The discussion in that section focuses on the possibility for military commanders to limit their subordinates’ right of self-defence, but it is equally applicable to the use of defensive force based on loac in situations where self-defence does not apply.86
The right to life of military forces may also be discussed in the context of the training and equipment made available to military forces by their State.87 However, due to the focus on the use of force by nato forces, this aspect of the right to life will not be examined here.88
4.2.3 Extraterritorial Application
nato forces can be expected to operate beyond their State’s territory, either in support of another nato member or when participating in operations outside nato (so-called ‘out-of-area-operations’). This raises the issue of extraterritorial application of human rights to the activities of military forces as state agents and to the rights of the individual members of the military forces vis-a-vis their State.
The issue of extraterritorial application of human rights is complex for several reasons. First, the clauses regulating the application of different human rights regimes such as the echr and iccpr are worded differently, and there is therefore no universal approach to the issue. Second, the interpretation and application of these provisions by international bodies like the ECtHR and hrc have changed over time, and does not necessarily reflect the ordinary reading of the provisions.89
Article 1 of echr makes it clear that States party must secure the rights and freedoms of the Convention to “everyone within their jurisdiction”, regardless of their location. The test for this has been the subject of extensive debate, however, the ECtHR provided further clarification in the Al Skeini case. In addition to the territorial principle, a person falls within the jurisdiction of a State if he or she is in an area over which the State exercises effective control; or the State exercises control and authority over the person through its agents.90 In the former category, the most relevant examples of where military forces involved in an armed conflict have an obligation arising from the right to life are occupation, where human rights apply in full, or where the military forces have temporary control over an area, in which case the human rights obligations may be tailored and divided.91 The State is be considered to have authority or control over a person when its agents exercise physical control over that person, as in the case of detention, and depending in the circumstances, when conducting check-points.92
By contrast, iccpr Article 2(1) requires States party to that Convention “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant”.93 The inclusion of territory in addition to jurisdiction, as a cumulative rather than alternative requirement, has been interpreted by many States party to the iccpr, including the United States, to mean that the iccpr does not apply extraterritorially.94 The hrc contends, however, that it should be interpreted as extending human rights obligations to “all persons who may be within their territory and to all persons subject to their jurisdiction.”95 The icj has also been very clear on this issue; the criteria ‘territory’ and ‘jurisdiction’ apply disjunctively,96 and the iccpr may therefore be applicable when a State is exercising jurisdiction outside its own territory.97 As a result, the hrc argue that the obligations under Article 6 should be viewed as extending to “all persons over whose enjoyment of the right to life it exercises power or effective control”.98 Despite the objections of States party and the counterlogical intepretation of the term “and” to mean “or”, the current tendency is therefore to expect the iccpr to be applied extraterritorially in same way as the echr.99 For instance, according to the hrc, Article 6 may apply in full to “persons located outside any territory effectively controlled by the State who are nonetheless impacted by its military or other activities in a [direct], significant and foreseeable manner”.100
Whether or not this expectation is warranted, however, is of lesser relevance for the questions at hand. This is because the prohibition on arbitrary deprivation of life has a unique status and has a core that is applicable at all times. As Melzer explains, a distinction should be made between the different aspects of the right to life. Within a State’s territorial jurisdiction, the State has a positive duty to protect the right to life, while extraterritorially, the duty is limited to respecting the right to life.101 The latter duty, which corresponds with the prohibition on arbitrary deprivation of life, is considered part of customary law and applies regardless of where the military forces operate. In fact, it is even suggested to be a general principle of international law.102
As a result, whereas the extraterritorial application of other human rights may be “divided and tailored”103 to the situation, the prohibition on arbitrary deprivation always applies. It is nonetheless adapted to situations of armed conflict, and arbitrariness will be assessed in light of both loac and ihrl.
Finally, with regard to the State obligations to protect and respect the human rights of their military forces, the issue is less complicated. Because military forces will always be under the authority and control of their State, regardless of where they are, their right to life will continue to apply vis-a-vis their State, albeit with the modifications set out in Section 4.2.2.104
4.2.4 Concluding Remarks
The right to life, and particularly the prohibition on arbitrary deprivation of life derived from that right, is one of the most fundamental rights of all individuals. According to Corn, both loac and ihrl set out “a normative protection of the right to life that finds its primary expression in the general prohibition against arbitrary killings”.105 The core of this prohibition is the limitation it imposes upon the use of force by State agents: States cannot authorise the use of force resulting in arbitrary killing.106 During military operations, roe have become a primary tool for ensuring compliance with this obligation.107
The core of prohibition on arbitrary deprivation of life applies regardless of whether or not the victims fall within the human rights jurisdiction of that State. As explained by Kretzmer, “[a] state’s duty to respect the right to life (as opposed to its duty to ensure that right) follows its agents wherever they operate”.108 This norm is peremptory, and in addition to being set out in ihrl, it is also reflected in loac rules. According to AP I Article 75(2)(a), violence to life and murder are “acts [which] are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents”.109 As a result, even if the victims cannot claim human rights vis-a-vis a State that include a duty to investigate and enable a claim for compensation, the right to life will nonetheless limit the use of force a State may authorise its military forces to use. nato forces will therefore only lawfully be able to use lethal force if it is in compliance with loac; if it meets the requirements of personal self-defence; or they have been given authorities to use force beyond the application of loac and the use of force is absolutely necessary in order to protect life. These limitations apply regardless of the human rights responsibilities the troop contributing nations have or do not have for the victims.
4.3 The Relationship between the Jus ad Bellum and the Jus in Bello: Related in Fact, but Not in Law
4.3.1 Introduction
Historically, the law pertaining to the use of armed force has been divided into two categories: the jus ad bellum and the jus in bello. While the former regulates the legality of resorting to armed force in contravention with the prohibition on the use of force in the UN Charter,110 the latter regulates the use of means and methods during armed conflict.111 Simply put, the jus ad bellum regulates the ‘when’ while jus in bello focuses on the ‘how’. The relationship between these two areas of law is the subject of constant debate, both on a general basis and triggered by new challenges to their respective practical application. The approach taken to their relationship, coined by some as separationist and conflationist stances,112 affects the interpretation and application of the jus in bello in particular. As explained in Section 4.1, it is also central to this study of the legal basis for the use of force authorised by roe. Conflationists argue that loac does not authorise the use of force, merely regulate it. If the existence of an armed conflict, and the resulting application of loac, is not considered to provide the legal authority for the use of force, the legal justification for the use of force must be found elsewhere. Because the approach taken to this question has such fundamental implications for the study, the debate will be examined in detail.
The impact of the approach taken to the relationship between the jus in bello and jus ad bellum may be illustrated by a simple scenario. During an armed conflict, a military convoy is moving from place A to place B. It is vital that it reaches B as soon possible, for instance because they must prevent opposing forces from releasing biological or chemical weapons or from setting off explosives in civilian market. However, there is a group of innocent civilians (for instance teachers and school children) crossing the road. The convoy cannot avoid them; they have to stop or hit them. The roe authorise the use of force to secure freedom of movement, but the force used must be lawful. Would loac permit harming the individuals? Because the convoy does not qualify as an attack, the civilians cannot be considered as collateral damage, and loac would therefore not permit such harm. Or is it sufficient that the use of force is necessary for mission accomplishment, which has its legal justification in the jus ad bellum? The latter approach is of course easier to apply, but would, as will be further explained below, entail an undesirable conflation of these two areas of law which should be avoided.
4.3.2 Background
It is probably safe to state that the traditional approach to the relationship between the jus ad bellum and jus in bello has been that of separation,113 even if this separation has been constantly challenged.114 One of the ultimate questions in the debate is whether all parties to a conflict deserve and are entitled to equal rights or liberties, or whether some are more entitled than others due to the perceived responsibility for the armed conflict. The approach taken when negotiating and applying the jus in bello or loac has been that of equal application.115 For instance, after the Second World War, it was debated whether the German and Japanese soldiers were entitled to the combatant privilege and immunity for lawful acts of war or whether they should be held liable for their States’ acts of aggression. In the end, the distinction between the jus ad bellum and jus in bello was upheld and the question of the legality of the initial use of force or invasion held not to affect the rights and duties under the jus in bello.116
[T]he Appeals Chamber recalls the fundamental distinction in international law between the rules governing a State’s right to resort to armed force (jus ad bellum) and the rules applicable in armed conflict (jus in bello). The Appeals Chamber has previously held that the application of the latter rules is not affected by the legitimacy of the use of force by a party to the armed conflict. 120
The separation is also reflected in the Rome Statute of the International Criminal Court in the assertion that a person’s participation in a defensive operation in the ad bellum sense will not constitute a ground for excluding criminal responsibility under the rule of personal self-defence.121 Finally, a similar emphasis is found in the Commentaries to the 2001 Articles on State Responsibility: “As to obligations under international humanitarian law and in relation to non-derogable human rights provisions, self-defence does not preclude the wrongfulness of conduct”.122
Although this language appears to settle the debate, the need to include this language and reaffirm it in the 1977 Additional Protocols bears evidence of a continued debate or even ongoing battle. In a thorough article on these questions, Joseph HH Weiler and Abby Deshman explain that “[i]n the battle zone between Separationist and Conflationists (…) no quarter is given, no prisoners are taken”. Both sides argue that their approach is the only possible approach, and many of the arguments are based on politics and morality as much as law. In the following, the two opposing approaches will be presented, before discussing further how the competing interests may best be balanced.
4.3.3 Reasons for Separation
The separationist approach is to argue that the jus ad bellum and jus in bello are completely separate. The jus ad bellum regulates the situation until the threshold of an armed conflict is reached, at which stage the jus in bello ‘takes over’ and regulates the hostilities. According to Weiler and Deshman, there are two main strands of separationist approaches: the pragmatic and the foundational.123 The pragmatic separationists refer to the inability to determine, objectively, who was entitled to use force and who was not. Because both parties will claim to have acted lawfully, a system that would relieve the “victim” State of certain jus in bello obligations would result in the total protection set out in jus in bello would never being applied. The foundational strand of separationism rests on the humanitarian objectives of the jus in bello, and the importance of protecting those adversely affected by the conflict.124 The victims of armed conflict, whether hors de combat or civilians, need the same protection regardless of their State’s role in initiating the conflict. Jus in bello affords rights and duties to both States and individuals, and the rights of an individual provided by international law should not be lost due to an unlawful act by the State.125 Furthermore, as the final report to the icty Prosecutor by the Committee Established to review of the nato bombing campaign against the Federal Republic Yugoslavia emphasises: “An argument that the ‘bad’ side had to comply with the law while the ‘good’ side could violate it at will would be most unlikely to reduce human suffering in conflict”.126
It is not uncommon to combine the pragmatic and foundational arguments for separation. For instance, in a nato standardised training package on loac, developed by representatives from nato member States, it is stressed that “loac addresses the reality of armed conflict without considering the reasons for or legality of the initial resort to force. (…) Its provisions apply to the warring parties irrespective of the reasons for the conflict and whether or not the cause upheld by either party is just”.127 This approach is explained both by the fact that “the denunciation of the parties to a conflict (…) would be bound to arouse controversy and paralyse implementation of the law, since each adversary would claim to be a victim of aggression” and furthermore, that “loac is intended to protect war victims and their fundamental rights, no matter to which party they belong”.128 The legal equality between belligerent parties also makes sense from a practical perspective. As Dinstein explains, “[t]he jus in bello has in the past succeeded in curbing excesses, notwithstanding the pervasive animosity towards the enemy that is characteristic of every war, only because it has germinated mutual advantages for both sides”.129 Separationism is therefore an important incentive for State compliance with the jus in bello.
It would be contrary to the universal practice of civilized nations to fix individual responsibility upon persons who with the sanction or by the orders of the constituted authorities of a State engaged in military or naval enterprizes in their country’s cause; and it is obvious that the introduction of such a principle would aggravate beyond measure the miseries, and would frightfully increase the demoralizing effects of war, by mixing up with national exasperation the ferocity of personal passions, and the cruelty and bitterness of individual revenge. (…) Her Majesty’s Government cannot believe that the Government of The United States can really intend to set an example so fraught with evil to the community of nations, and the direct tendency of which must be to bring back into practice of modern war, atrocities which civilization and Christianity have long since banished.132
Furthermore, if individual soldiers would be held individually responsible for the political decision of using force in the first place, they would be required to assess and second-guess whether the orders they are given are in accordance with the political and jus ad bellum framework of the operation. However, there is no way of ensuring that all members of military forces share the views and interpretations of their politicians and strategic leadership, and the political and strategic levels will to some extent lose control of the use of force. This is highly problematic, as discipline is essential for the ability of the military to achieve its tasks and for the military and political control of the use of force. Some even go so far as to argue that it is “axiomatic that servicemembers have no independent right to engage in hostilities”.133 Rather than concerning themselves with politics and shifting positions, the military should be permitted and required to adhere to a clear set of ‘rules of the game’ for the use of military force. Abandoning the historic separationist approach may therefore have unintended and undesirable consequences.
4.3.4 Challenges to Separation: Conflationism
If separation ensures protection of the victims of armed conflicts on all sides and encourages centralised control of the use of military force, the next question then is: why conflate the two areas of law? Why has the separation been the subject of continued challenge? And why is it so hard to come to an agreement? Weiler and Deshman refer to “those who would, in this or that circumstance, conflate the two [areas of law] or at least link them”134 as conflationists. There are two manners in which the jus ad bellum may influence the jus in bello: by changing its mode of application or as a relevant source of interpretation.135 From a separationist perspective, the application of jus in bello should be determined on the basis of the actual situation on the ground, and not whether a party’s presence in an area is legitimate.136 Although the argument has been made that forces operating under a UN Mandate do not become party to a conflict, such as by certain European nato members participating in the UN authorised air strikes on Bosnian Serb artillery positions during 1994–1995,137 this view is fortunately uncommon. The main issue is therefore whether the jus ad bellum may influence the interpretation of jus in bello. For instance, should the military advantage gained from an attack be assessed on the basis of tactical or operational considerations only, or are strategic considerations also relevant?138
Under the jus in bello, both parties have to comply with the same rules, in all circumstances. This means that there is no requirement of reciprocity; a party to the conflict is still bound by the rules even if the other party does not respect them.139 The only way to apply the rules unequally would therefore be through the influence of jus ad bellum.140 As mentioned above, one of the main challenges to separation is the view that one party is entitled to use of force in the ad bellum context, and therefore should be entitled to more rights under the jus in bello, and hence be relieved of some of the jus in bello obligations. Such arguments have previously been made in the context of just war theory, and appear to have been revived in the relation to UN mandated operations with a humanitarian focus, and the fight against international terrorism.141
One of the ultimate questions in the debate is whether all parties to a conflict deserve and are entitled to equal rights, or whether some are more entitled than others due to the perceived responsibility for the armed conflict. For instance, Terry Gill argues that “it is fair to say that the greater the scale of violation of the ius ad bellum by one side, the more latitude the ius ad bellum will give the ‘defending side’ to lawfully employ force to overcome the unlawful use of force within the scope and confines of ihl/loac, including relating to targeting. In other words, the larger the scale of an unlawful attack is, the greater the scope of targeting military objectives under ihl/loac will be”.142 However, it is unclear how exactly the ‘defending side’ may gain a greater scope of targeting without violating the jus in bello.
As explained above, one of the challenges stressed by separationists has been the inability to determine which party to the conflict is legitimately using force. This is particularly the case in situations where one or both sides are claiming to act in self-defence. However, when the use of force is authorised by the UN Security Council, it is generally accepted that it is legitimate and hence moral, especially when the purpose of the mandate is to protect civilians. While it is no longer debated whether UN forces must comply with the jus in bello,143 it has been argued that State practice is to relax the jus in bello standards in light of a jus ad bellum justification of the operation. For instance, Judith Gardam argues that in relation to the 1990–1991 Gulf war that “[i]n the assessment of proportionality, civilians, and to a lesser extent combatants, of the aggressor state were accorded less weight in the balancing process than combatants of the ‘just side’”.144 Similarly, Weiler and Deshman argue that the justness of nato’s cause in the 1999 Kosovo intervention145 affected the jus in bello expectations. They argue that the decision to execute a bombing campaign from a minimum height of 15,000 feet to avoid risk to their own forces could only be acceptable when taking the purpose of the intervention into account.146 At the same time, the operation was also criticised for exactly the same reasons: if the purpose is humanitarian, how can it be justified that the bombs were dropped at such high altitude, when this meant increased risk of civilian casualties? Similar criticisms were voiced in the context of the nato bombing campaign in Libya.
In other words, it is possible to argue both that the mandate should lessen some of the jus in bello obligations, and that it should have a limiting effect on the rights and possibilities provided by the jus in bello. Ian Henderson, for instance, proposes that “the scope of the mandate will affect what is a military advantage that may lawfully be sought from any particular attack”,147 a stance that has been criticised for imposing constraints on UN mandated forces that are “not required by the applicable law”.148 The existence of a UN mandate is therefore clearly posing a particular challenge to the relationship between the jus ad bellum and jus in bello, and will be further addressed in the next subsection.
Another challenge to the separation is the ongoing fight against international terrorism. As Sassoli points out, the prohibition on terrorism makes it clear that the terrorists are definitely on the ‘wrong’ side, which places States trying to defeat them on the ‘right’ side.149 In fact, terrorism may as easily be viewed as criminal activity rather than war. The challenge is that law enforcement on another State’s territory without its consent is a violation of the UN Charter. On the other hand, as the case of Syria illustrates, it could be possible to use force against a non-State actor in self-defence if the State acting in self-defence argues that there has been an armed attack and the local Government consents to force being used against the non-State actor or is unwilling or unable to prevent the threat.150 The pursuing armed conflict would be regulated by the law of armed conflict, and the State will have recourse to use force against the ‘terrorists’.
However, this does not only give rise to opportunities, but also obligations. Although the terrorists become lawful targets, they also gain the protections offered by the jus in bello, especially under Common Article 3 and also the customary law application of provisions such as AP I Article 75.151 Those who perceive this as inappropriate and incorrect have instead argued that the ‘terrorists’ should be viewed as ‘unlawful combatants’, meaning that they are lawful targets at all times but have no special rights.152 The argument goes that they should not be using force in the first place, and their participation in the conflict is therefore deemed unlawful. What the appropriate approach should be is not important here; the point is that the jus in bello and jus ad bellum is clearly conflated in the debate on the so-called ‘war on terror’.153
Further examples of conflation may be found in both treaties and decisions by international courts.154 For instance, AP I Article 1(4) declares that conflict which would otherwise be non-international should be treated as if they were iacs, thereby providing the soldiers with the status as lawful combatants, if they are fighting against colonial domination, alien occupation or racist regimes. The classification of the conflict is not merely based on the factual situation but also the justification for the conflict, and was even at the time criticised as being an impermissible introduction of jus ad bellum into jus in bello.155 Similarly, Article 44(3) reduces the requirement for forces to distinguish themselves from civilians if “the nature of the hostilities” makes it practically impossible to continue fighting. This will for instance be the case for soldiers fighting an occupation of their territory. The use of force in response to alien occupation is permitted under the jus ad bellum concept of self-defence, and the jus in bello was therefore adapted to make it possible.156
Maintaining the distinction has also proved to be difficult for the International Court of Justice. In its Nuclear Weapons Advisory Opinion, the icj stressed the importance of separation,157 but still appear to have confused the two areas of law. Having concluded that “the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law” the Court goes on to state that it nonetheless was unable to “conclude definitely whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake”.158 This has been interpreted to mean that the use of a weapon that is unlawful under the jus in bello would still be lawful if the jus ad bellum cause would justify it (i.e. in extremis). Alternatively, the text could be interpreted to mean that although nuclear weapons are generally prohibited by the jus in bello, there are circumstances where it would be permitted, but only in extreme situations of self-defence.159 Either way, the Court departs from the traditional approach of strict separation.
The Court also appears to conflate the jus ad bellum with the jus in bello in the Palestinian Wall Opinion and the Oil Platforms case. In the former, it concluded that the wall violated the jus in bello but that jus ad bellum circumstances, such as self-defence, potentially could justify the jus in bello violations.160 In the Oil Platforms case, the Court relied on jus in bello requirements of legitimate military targets when assessing the legality of use of force in State self-defence.161 By contrast, in the Armed Activities case, the jus ad bellum and jus in bello is considered separately.162 As a result, rather than providing guidance on how to deal with the renewed challenges to separation, the icj has instead added to the confusion.
4.3.5 The Impact of the Jus ad Bellum on the Jus in Bello: a Balancing Act
Those in favour of the separationist perspective appear to consider the approach to be more objective, meaning further removed from (‘inappropriate’) political and moral arguments such as ‘rightful’ or ‘just’ use of force. It ensures that States cannot depart from applicable legal obligations on the basis that the opposing side is undeserving of the rights they would otherwise be bestowed. Because the application of the jus ad bellum is particularly political in nature, and there is no court available to determine the legality of any conflict at its beginning, allowing the scope and application of the jus in bello to depend on the jus ad bellum would render it ineffective.
The challenge is that the application of jus in bello is also inherently political. As pointed out above, certain provisions appear to permit the jus ad bellum to influence the specific jus in bello rules. For instance, AP I Article 1(4) illustrates that the classification of conflicts is not completely removed from political arguments, even if the test is supposed to be factual and hence apolitical. Furthermore, the jus in bello rules on who are entitled to participate in hostilities, and who are entitled to pow-status upon capture, is influenced by the jus ad bellum idea that only States are entitled to wage war.163 Perhaps more importantly, it should never be forgotten that war is merely an instrument of politics; wars should not be fought for the sake of the fighting.164 The military operation and the application of the jus in bello cannot be undertaken in complete isolation of the political circumstances, nor from the legal framework regulating the alternatives for dealing with the political or social problem, namely the jus ad bellum. The question is how the competing interests of separation and conflation are best balanced.
According to Martti Koskenniemi, international law must be both normative and concrete. By this he means that “it binds a State regardless of that State’s behaviour, will or interest but that its content can nevertheless be verified by reference to actual State behaviour, will or interest”.165 It must avoid being so dependent on State policy that it is perceived as infinitely flexible and hence apologetic, and at the same time not be so moralistic that it becomes utopian.166 The conflationist approach may be criticised as being apologetic, letting the States define the law in accordance with their own political preferences. On the other hand, maintaining a strict separation between war and politics is perhaps somewhat utopian, appearing almost naturalistic or religious. As shown above, although separation is perhaps argued, both States and the icj struggle to maintain this separation at all times, and international law unfortunately does not provide a clear answer.167 As a result, anyone dealing with these issues must decide how the competing interests are best balanced in relation to their work, and justify the approach taken.
The debate on the relationship between the jus ad bellum and jus in bello may also be viewed as reflecting the longstanding debate of positivism and naturalism. While positivism views law as a social construct that can be identified and described in purely factual and empirical terms, natural law views law as being influenced by “universally valid principles governing the life of man in society, principles that have not been created by man but are discovered, true principles, binding on everyone, including those who are unable or unwilling to recognize their existence”.168 If the justification for including jus ad bellum considerations in the interpretation and application of the jus in bello is based on extra-legal considerations such as morality, justness and legitimacy, then this conflation is likely to be a reflection of the general approach taken to the definition of law, namely that it includes natural law considerations.
This debate between legal positivism and natural law, or even what Koskenniemi calls the balancing of apology and utopia, is of course not unique to the issue at hand. However, the inherent nature of war makes it particularly difficult to maintain a strict separation between the lex lata and moral and political considerations. As Marko Milanovic explains, the jus in bello suffers from an “internal moral coherence (being a body of law that legitimizes the routine killing of people, albeit in a nice way)”. He goes on to state that “[t]here is (…) no other part of international law that is so openly exposed to the apology/utopia dynamic, that is so existentially concerned with the need to reconcile normativity with practicality, that is so obsessed with appearing objective and apolitical when trying to regulate war, that most political of human endeavours”.169 This is perhaps why many writers surrender to the temptation to conflate the two areas of law.
The reality is that both political and moral considerations will affect decisions during armed conflict. However, the question from a legal perspective is what military commanders and forces are legally required to take into account. I would argue that the jus in bello applies in full, regardless of the legal basis or justification for the use of force under the jus ad bellum.170 There is no basis in law for conflating the two areas of law, and the arguments in favour of maintaining the distinction outweigh those in favour of conflation. The jus ad bellum prohibition on the use of force and the corresponding exceptions were already in existence when the Geneva Conventions and its Additional Protocols were drafted, and the decision was still made to emphasise the importance of separation. The question of the impact of jus ad bellum has already been considered when developing the jus in bello rules, and should therefore not be used as a reason to change those rules.
At the same time, the jus in bello cannot be interpreted or applied in complete isolation of other areas of law that apply simultaneously, such as the jus ad bellum obligations both towards the opposing side and neutral States. The question is what the practical implications are of applying both legal regimes. Should the jus ad bellum considerations of necessity and proportionality be interpreted into the jus in bello rules, thereby affecting their application? Or are they separate rules applied as an additional layer to the conduct of hostilities regulated by the jus in bello?
There is one area in particular where commentators struggle to uphold the important separation between the jus ad bellum and the jus in bello. Jus ad bellum arguments tend to be used in interpreting the jus in bello through the concept of ‘military necessity’. ‘Military necessity’ dictates that the force used during armed conflict must be necessary to achieve the State’s legitimate military goals.171 These goals are developed on the basis of and in furtherance of the political goals of that State, which again will be influenced by the (jus ad bellum) justification or legal basis for the operation.172 Despite stressing the importance of separation of these branches of law, Greenwood, for instance, makes the argument that military necessity must be interpreted in light of the applicable jus ad bellum.173 In his view, “[t]he changes in the ius ad bellum brought about by the UN Charter have added a new dimension to this principle of military necessity”.174 However, as explained above, the jus in bello is intended to and needs to be apolitical. Although the political and military goals may sometimes overlap, and the latter should be informed by the former, they are two separate considerations.175 As Clausewitz explained: “Policy, of course, will not extend its influence to operational details. (…) But they [political considerations] are the more influential in the planning of war, of the campaign and often even of the battle”.176 If the political purpose behind the use of armed force could influence what is military necessity for the sake of regulating means and methods of warfare, it would undermine the abovementioned underlying principle of equal application of the jus in bello.
The better view, therefore, is that rather than changing the rules of jus in bello, the legal basis for the use of force found in jus ad bellum, such as in the form of a UN Security Council mandate, imposes additional obligations on the State, and that these obligations continue to apply after the commencement of hostilities. Although the UN Security Council in theory may impose obligations that prevail over other international law,177 in practice, the resolutions frequently call on all parties “to comply with their obligations under international humanitarian and human rights law”.178 The jus ad bellum informs the application of the jus in bello by providing overall limitations on how the jus in bello may be applied, such as by limiting the geographical area of operations or types of lawful targets.179 Within these parameters set by the jus ad bellum, the jus in bello defines the conditions for lawful use of force. The use of force that military forces are authorised to use during armed conflict, through the roe for example, must therefore be based on the jus in bello (or other applicable laws). However, the development of the roe and other mission-specific plans, orders and directives must also reflect any jus ad bellum limitations. This also means that Commanders in particular receive clear guidance on how the political and strategic levels interpret the legal framework for the operation and how this is expected to impact the operational and tactical application of force.
Although the practical consequences of this separationist approach may be similar to those resulting from integrating jus ad bellum considerations into the interpretation of jus in bello rules, they differ in two particularly important respects. First, it influences the question of responsibility for wrongful acts; the consequences of violating the two respective legal regimes differ. Violations of the jus in bello may amount to a war crime if they are sufficiently serious, and both the person carrying out the war crime and their superiors may be held accountable. In addition, the State in question is responsible for the acts by persons forming part of its armed forces.180 By contrast, the use of force in contravention of the jus ad bellum primarily gives rise to State responsibility. Even though acts of State are in fact acts of persons,181 individual responsibility for a crime of aggression is, at least in the case of the Rome Statute, limited to: “the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations”.182 This does not, therefore, include the members of the armed forces in general.
Maintaining separation is therefore a way to ensure that the responsibility for any jus ad bellum violations is appropriately placed with the State and those responsible for the decision to act in contravention with the UN Charter, rather than the individual soldiers who were never in the position to influence that decision. In order to ensure respect for the jus ad bellum as well as the jus in bello, States should, as mentioned above, provide clear guidance to their military forces on how it views its jus ad bellum obligations. In addition, they should integrate such guidance into military orders to ensure compliance. If military forces fail to comply with those orders, it could be a national disciplinary or criminal matter for the person or persons involved. The violation of the jus ad bellum would remain the responsibility of the State. If the State’s interpretation of its obligations is found by an international court to be erroneous, it would also be the State rather than the military forces acting in compliance with the orders that would be responsible under international law for the jus ad bellum violation.
The second practical distinction between the separationist and conflationist approaches, and the one most important to this book, is its impact on the question of the legal basis for the use of force by military forces participating in an armed conflict. As alluded to in the introduction, if the two are conflated, the jus ad bellum is perceived as the legal basis for the use of force as long as the jus ad bellum is relied upon, including during armed conflicts. The result of the conflationist approach is therefore to view the jus in bello not as an independent legal regime determining the legality of the use of force, but merely as rules setting out how the force justified by the jus ad bellum may be carried out. By contrast, when the separationist approach is applied, as is done in this book (for the many reasons set out above), the legal authority for the use of force during an armed conflict must be found elsewhere. As will be further explained, the legality of the use of force will in most cases be premised on the application of and adherence to the jus in bello, although in certain cases where the jus in bello does not provide the necessary permissions, personal self-defence will apply.
4.3.6 Concluding Remarks
As the above discussion indicates, the relationship between the jus ad bellum and the jus in bello is complicated. The principle of equal application demands that their separation is maintained, as do the question of responsibility. Conflation would shift the responsibility for jus ad bellum compliance from the State to the soldiers who were never involved in the decision to ‘go to war’. It would mean that the legality of the use of force of individual soldiers would be affected by the politics of the jus ad bellum rather than adherence to the jus in bello. If military forces are instructed that in a post war trial, those perceived to have been on the wrong side will be considered to have acted unlawfully regardless of their compliance with loac, it will not only give the soldiers on the losing side no incentive to the respect that law, it will arguably also discourage their surrender, thereby prolonging the conflict.
At the same time, it is difficult to contend that the jus ad bellum ceases to be relevant once hostilities commence.183 After all, the jus ad bellum and in particular UN Security Council resolutions provide the reasons for States to use force in the first place, and the conditions for acting in contravention of the UN Charter cannot be ignored once the hostilities have begun. However, rather than affecting the application of the jus in bello, the jus ad bellum should be viewed as an additional layer of obligations, imposed on the State rather than on the individual members of the armed forces.
The implications for this book is that the use of force authorised by nato roe for operations involving participation in an armed conflict must be permitted by one of the recognised exceptions to the prohibition on arbitrary deprivation of life. The jus ad bellum cannot provide further authorities for the conduct of hostilities, but may entail limitations, in which case the roe would also need to reflect those limitations.
4.4 When Does What Apply? On Lex Specialis
When more than one area of law can potentially be applied to one situation, it becomes necessary to determine how the legal regimes interact. With respect to the use of force against individuals during armed conflict and the prohibition on arbitrary deprivation of life, it is clear that loac applies. It is also increasingly recognised that human rights continue to apply as well.184 Applying ihrl and the right of self-defence to actions taken by military forces during an armed conflict poses challenges due to their fundamentally different nature from loac.185 While human rights are intended to prevent States from abusing its own citizens, the focus in loac is on the responsibility of individuals, and it is intended to protect civilians and reduce suffering on the battlefield.186
As mentioned above, the relationship between loac and other legal regimes have been solved both by courts and experts by application of the rule lex specialis derogat legi generali.187 However, the concept of lex specialis has been put under increasing pressure, particularly when the concept is being used as an argument for applying one legal regime to the complete exclusion of others.188
It should first be emphasised that much of loac entails the same protection of human rights as ihrl, making their coexistence unproblematic.189 For instance, both loac and ihrl prohibits ill-treatment.190 In fact, in these cases loac arguably provides better protection, since the rules are more detailed and tailored to the situation and are not subject to derogation.191 In other areas, the rules are inherently opposed. While human rights purport to protect all lives, loac accepts the fact that both those participating in the armed conflict and innocent civilians will be harmed. As mentioned with regard to the right to life, under ihrl, “the life of the individual posing an imminent threat himself is to be taken into account, in contradistinction to ihl”.192 Attempts must therefore be made to avoid harming that person. As a result, “under ihrl [and thus SD], the use of deadly force in the sense of an intentional, premeditated, and deliberate killing by state actors cannot be legal, because, unlike in armed conflict, it is never permissible for killing to be the sole objective of an operation. ihrl simply does not tolerate ‘shoot-to-kill’ orders”.193 As Dinstein explains, “[t]he very conduct of hostilities is completely alien to the underlying values of human rights law”.194 It is in these cases the lex specialis rule will be relevant.195
Although it may be tempting to draw the distinction between peacetime and armed conflict rules, this is an oversimplification. It is not a matter of ‘either/or’. In the Nuclear Weapons Advisory Opinion, the icj explained that “some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law”.196 Because both areas of law apply, it is necessary to determine which is the primary legal regime and which is secondary. This determination is done on the basis of several considerations.197 Assuming there is an armed conflict, are the military forces involved in conduct of hostilities or law enforcement? Does loac provide explicit rules designed for the situation?198 Are the criteria for human rights application met? This is for example more likely for occupation and niacs within a State than iacs, and more likely for detention than for instance combat engagement.199
According to Murray et al., “the case law appears to have moved beyond a strict application of the principle of lex specialis and towards a ‘complimentary’ or ‘integrated’ approach, where although one body of law may provide the primary framework in light of its appropriateness to the regulation of the situation at hand, both bodies of law are applicable and capable of informing the overall legal framework”.200 In the context of the right to life, this complimentary approach is particularly clear. For the purpose of the echr, the right to life is one of the few areas where the relationship with loac is expressly considered; deaths resulting from lawful acts of war are recognised exceptions from the non-derogable right to life.201 Similarly, according to the icj and hrc, the prohibition on arbitrary deprivation of life set out in iccpr Article 6(1) must be interpreted not to be violated when the use of force is in accordance with loac.202
On a more general note, the wariness by the icty Trial Chamber “not to embrace too quickly and too easily concepts and notions developed in a different legal context” should be recalled.203 The Trial Chamber goes on to explain that “notions developed in the field of human rights can be transposed in international humanitarian law only if they take into consideration the specificities of the latter body of law”.204 Furthermore, whichever approach is taken to this complex legal question, it must be possible to apply in practice. This point is emphasised by Hampson, who explains that “[t]he solution to the lex specialis problem in practice has to be capable of being applied by those involved at the time they act or take decisions. It cannot be determined after the event, even if that is when it is enforced”.205 The approach taken to the relationship between ihl and ihrl should not be so context-dependent that it becomes impossible to provide military forces clear guidance on what is expected of them.
The effect of applying the prohibition on arbitrary deprivation of life to military operations is twofold. First, because military forces are State agents, it limits their ability to use force. Second, it affects the relationship between the State and the members of its own military forces.206 The limits on the use of force by military forces will primarily be loac, but where loac does not provide explicit rules for the use of force against a person, the prohibition requires that force may only be used to the extent there is an alternative legal basis. Importantly, where loac does provide the necessary authorities for using forces, it will be the primary legal framework for military forces to apply.207
The human rights responsibilities towards the State’s own military forces means that military forces cannot be denied the ability to defend their lives. However, as will be discussed in Chapter 8, although self-defence is applicable at all times, its application is very contextual, and the circumstances military forces find themselves in during armed conflict often differ dramatically from those arising outside of armed conflicts. In particular, the application of self-defence presumes that the response is otherwise unlawful, while the use of force in accordance with loac is considered lawful. As a result, the scope for using force in self-defence will be different than during peacetime or by ordinary civilians,208 but the primary legal framework (loac) will in most cases provide the necessary authorities to use force. Unlike human rights, however, loac does not provide any protections for military forces vis-a-vis their own State. ihrl and particularly the prohibition on arbitrary deprivation of life with the resulting right to use force in self-defence will therefore remain important to military forces, regardless of the scope for using force under loac.
In addition to the situations where loac and ihrl either overlap or differ, there are areas where loac is silent on an issue that ihrl regulates, such as the freedom of expression.209 In such cases, as Murray et al. explains, it must be borne in mind that “the gap in the law of armed conflict may be a deliberate omission, reflective of the reality of armed conflict. It cannot be assumed that international human rights will apply unaltered.”210 However, this is of limited relevance for this book and its focus on the use of force against individuals.
Because self-defence is both an aspect of ihrl and criminal law, its relationship with loac is more complicated than for human rights in general. The application of self-defence presumes that the response is otherwise unlawful and therefore in need of a criminal law defence. As a result, the relationship between personal self-defence and loac may also be affected by how loac is implemented in domestic law. As will be explained in Section 5.1.2, the combatant privilege is commonly regarded as an aspect of the authorisation given to military forces to use force on behalf of the State, and will as such amount to an exception to the criminal law prohibitions when the acts concerned comply with loac. If a situation arises where the reasonableness of the use of force is questioned, such as when it was considered disproportionate or directed at the wrong (i.e. not lawful) target, compliance with loac may be applied as a response or as a form of defence. Depending on the facts, self-defence may also be a relevant defence.211
4.5 Conclusion: Two Main Legal Bases for the Use of Force
As a result of the prohibition on arbitrary deprivation of life, all use of force must have a clear legal basis. In the context of military forces participating in an armed conflict, the use of force against another person should be primarily founded on the law of armed conflict, which is the lex specialis of armed conflict. Because members of military forces are individuals as well as State actors, self-defence may apply as an additional exception in order to protect their right to life or that of others. As will be further examined in Chapter 6, the conclusions reached regarding the relationship between the law of armed conflict and the jus ad bellum, including State self-defence, entail that the legal concept of self-defence most relevant will be personal self-defence.
Gary P. Corn, ‘Should the Best Offense Ever be a Good Defense? The Public Authority to Use Force in Military Operations: Recalibrating the Use of Force rules in the Standing Rules of Engagement’, 49 Vanderbilt Journal of Transnational Law 1 (2016), pp. 37–38.
SS Lotus (France v Turkey), Judgment, PCIJ Rep Series A No 10 [1927] [hereinafter: Lotus case], p. 18.
ibid, p. 19.
Jean S. Pictet (ed.), The Geneva Conventions of 12 August 1949: Geneva Convention for the amelioration of the condition of the wounded and sick in armed forces in the field [hereinafter: GC I Commentary], Vol. 1 (icrc, Geneva, 1952) p. 32, and icrc, Commentary on the First Geneva Convention – Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field [hereinafter: GC I Commentary] (second edition, 2016,
Daragh Murray et al., Practitioners’ Guide to Human Rights Law in Armed Conflicts (Oxford University Press, Oxford, 2016) p. 13.
Dino Kritsiotis, ‘War and Armed Conflict: The Parameters of Enquiry’, Chapter 1 in Rain Liivoja and Tim McCormack (eds.), Routledge Handbook of the Law of Armed Conflict (Routledge, Milton Park, Abingdon, Oxon, 2016) p. 11.
See also Nils Melzer, ‘The Principle of Distinction between Civilians and Combatants’, in Andrew Clapham and Paola Gaeta (eds.), The Oxford Handbook of International Law in Armed Conflict (Oxford University Press, 2014) p. 296.
Kritsiotis, ‘War and Armed Conflict: Parameters’ (n 6) p. 27. See further Section 5.1.1.
On combatant immunity, see Section 5.1.2.
UN Human Rights Committee (hrc), Draft General Comment No. 36 – Article 6: Right to Life [hereinafter Draft General Comment 36] [19 October–6 November 2015], U.N. Doc CCPR/C/GC/R.36/Rev.2, para. 17. The prohibition on arbitrary deprivation of life is further examined in Section 4.2.
Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, [hereinafter: ICRC CIL Study] (Cambridge University Press, Cambridge, 2005,
The relevance of ihrl to situations of armed conflict is met with considerable criticism, especially from the U.S. Solis, for instance, refers to those arguing for human rights application as “human rights activists”, and explains that the U.S. “believes that human rights law was not intended to be, and should not be, controlling in jus in bello situations”. Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War (Cambridge University Press, Cambridge, 2016) p. 487.
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports [1996] 226, para. 25.
As explained in Section 1.4, lex specialis is used to explain that a legal regime takes primacy, however, other areas of law may also be applicable in the same circumstances and be complimentary to the lex specialis regime. The impact of the rule is to clarify that if those regimes are in conflict, the lex specialis rule will prevail. The same will apply if the lex specialis rule has more explicit rules. See further Section 4.4.
See also Solis, The Law of Armed Conflict (n 12) p. 488.
This point is discussed further in Sections 4.2.2 and 8.2.10.
See Section 1.3.2.1.
According to the Lotus case, “the first and foremost restriction imposed by international law on a State is that – failing the existence of a permissive rule to the contrary, it may not exercise its power in any form in the territory of another State.” Lotus case (n 2) p. 18.
UN, Basic Principles on the use of Force and Firearms by Law Enforcement Officials (1990,
For an example of this approach, see Geoffrey S. Corn et al., The Law of Armed Conflict – an Operational Approach (Wolters Kluwer Law & Business, New York, 2012) Chapter 1.
Charter of the United Nations (UN Charter), 24 October 1945, 1 UNTS xvi.
For examples, see e.g. Yoram Dinstein, War, Aggression and Self-Defence (Cambridge University Press, Cambridge, 2011) pp. 171–172.
While Article 1 of echr uses the term ‘jurisdiction’, iccpr Article 2(1) refers to “all individuals within its territory and subject to its jurisdiction”. The main practical implication of this difference arise in the context of extraterritorial human rights application, which is considered below. An extensive study of this issue is, however, outside the scope of this book. European Convention for the Protection of Human Rights and Fundamental Freedoms (echr) (1950), as amended by Protocols Nos. 11 and 14, ETS 5, International Covenant on Civil and Political Rights (iccpr), 16 December 1966, UNTS vol. 999, p. 171.
Murray et al., Practitioners’ Guide (n 5) pp. 18–19.
ibid, p. 12.
See e.g. references in note 188.
See Section 2.5.
This much debated human rights concept was first introduced on Loizidou v Turkey [GC] (Judgement), App. No. 15318/89 (ECtHR, 18 December 1996), para. 52: “the responsibility of a Contracting Party could also arise when as a consequence of military action – whether lawful or unlawful – it exercises effective control of an area outside its national territory”.
See e.g. Jaloud v. the Netherlands (Judgement), App. No. 47708/08 (ECtHR, 20 November 2014), 3.11.3; Behrami v. France [GC], App. No. 71412/01 (ECtHR, 2 May 2007), and Saramati v. France, Germany and Norway [GC], App. No. 78166/01 (ECtHR, 2 May 2007). See also Park, who argues that because States are likely to always retain full command over their forces deployed to UN or nato operations, they will also retain human rights obligations for their actions. Ian David Park, The Right to Life in Armed Conflict (Oxford University Press, Oxford, 2018) pp. 119–120.
See for instance David Nauta, The International Responsibility of nato and its Personnel during Military Operations (Brill/Nijhoff, 2017).
Salman v. Turkey [GC], App. no. 21986/93, Judgment (Merits and Just Satisfaction) (ECtHR, 2000-vii), para. 97: “Article 2, which safeguards the right to life and sets out the circumstances when deprivation of life may be justified, ranks as one of the most fundamental provisions in the Convention, to which no derogation is permitted.”
See the iccpr (n 23) Article 6; echr (n 23) Article 2(2); American Convention on Human Rights, Organization of American States, “Pact of San Jose” (Costa Rica, 22 November 1969,
un hrc, Draft General Comment 36 (n 10) para. 69.
Murray et al., Practitioners’ Guide (n 5) p. 119.
Nils Melzer, Human Rights Implications of the Usage of Drones and Unmanned Robots in Warfare (2013, European Parliament, EXPO/B/DROI/2012/12) p. 18. See also Hurst Hannum, ‘The Status of the Universal Declaration of Human Rights in National and International Law’, 25 George Journal of International and Comparative Law 287 (1995/96), p. 343, especially examples in footnote 229.
McCann and others v. the UK, App. No. 18984/91 (ECtHR, 27 September 1995), §161, and Finogenov and Others v. Russia (Judgement), App. Nos. 18299/03 and 27311/03, (ECtHR, 20 December 2011), paras. 268–272. See also un hrc, Draft General Comment 36 (n 10) para. 31–32, and Fiona Leverick, Killing in Self-Defence (Oxford Monographs on Criminal Law and Justice, Oxford University Press, Oxford, 2006) p. 178.
For a detailed examination, see Park, The Right to Life in Armed Conflict (n 29) Chapters 2 and 4.
See e.g. Leverick, Killing in Self-Defence (n 36) pp. 190–191 and David Harris, ‘The Right to Life under the European Convention on Human Rights’, 1 Maastricht Journal of European and Comparative Law 122 (1994), pp. 122–128.
The process of derogation and consequences of States’ failure to formally derogate when participating in operations involving participation in armed conflict, and the possibility for derogating in the context of operations occurring outside the State’s territory, are outside the scope of this book. For commentary on these issues, see for instance Hassan v. the UK [GC] (Judgement), App. No. 29750/09, (ECtHR, 16 September 2014), especially para. 103; Murray et al., Practitioners’ Guide (n 5) pp. 105–107; Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press, Cambridge, 2016) pp. 29–31; and Park, The Right to Life in Armed Conflict (n 29) Chapter 6.
un hrc, Draft General Comment 36 (n 10) paras. 68–69, and UN Human Rights Committee, General Comment No. 29: Article 4: Derogations During a State of Emergency [31 August 2001] U.N. Doc CCPR/C/21/Rev.1/Add.11, para. 7.
This assumes that the echr Member State affected has derogated in accordance with Article 15(2), or the State practice not to derogate implies that this is not required. The implications of States’ failure to formally derogate from Article 2 is beyond the scope of this book.
The relationship between loac and ihrl is further examined in Section 4.4.
Park, The Right to Life in Armed Conflict (n 29) pp. 171–172. According to Park, “an assessment of jurisdiction is determined more by the actions of the state agents rather than as a consequence of the international humanitarian law notion of ‘occupation’ being ascribed to the actions of the state.” ibid, p. 171. See also Noam Lubell, ‘Human Rights in Military Occupation’, 94(885) International Review of the Red Cross 317 (2012), p. 337. The icj has only recognised extraterritorial application of human rights in cases of occupation. See Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Rep 2004, p. 136, para 109; and Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda), Judgment, I.C.J. Rep 2005, p. 168, para. 216. The ECtHR has considered human rights in situations of occupation in for instance Cyprus v Turkey [GC] (Judgement), App. No. 25781/94 (ECtHR, 10 May 2001), and Loizidou v Turkey [GC] (Judgement) (n 28).
For an overview of the issue, see Noam Lubell, ‘Challenges in Applying Human Rights Law to Armed Conflict’, 87(860) International Review of the Red Cross 737 (2005), pp. 746–750. See also Park, The Right to Life in Armed Conflict (n 29) p. 171.
See also Section 1.3.1.
Lubell, ‘Challenges in Applying Human Rights Law to Armed Conflict’ (n 44) p. 746.
See also Corn, ‘Public Authority to Use Force in Military Operations’ (n 1) p. 37.
See also Lubell, ‘Challenges in Applying Human Rights Law to Armed Conflict’ (n 44) p. 747.
See Park, The Right to Life in Armed Conflict (n 29) pp. 112–114, where this issue is examined in light of the ECtHR decision in Hassan v. the UK (n 39). See also Louise Doswald-Beck, ‘The Right to Life in Armed Conflict: Does International Humanitarian Law provide all the Answers?’, 89 International Review of the Red Cross 881 (2006), p. 882. Direct participation in hostilities is examined in detail in Section 5.2.3.
Lubell, ‘Challenges in Applying Human Rights Law to Armed Conflict’ (n 44) p. 750: “during a non-international armed conflict, whenever the State has enough control over a particular situation to enable it to attempt to detain individuals, then such an attempt must be made before force can be used, and non-lethal force must be favoured if possible.” The idea of ‘capture rather than kill’ is further examined and criticised in Section 5.3.1.
See also Park, The Right to Life in Armed Conflict (n 29) p. 113.
See also ibid, p. 129.
un hrc, Draft General Comment 36 (n 10) para. 6, footnote omitted. See also Salman v. Turkey [GC] (n 31) para. 98, and Andreou v. Turkey, App. No. 45653/99, Judgment (Merits and Just Satisfaction) (ECtHR 27 October 2009), para. 48, where it is emphasised that the right to life not only covers intentional killing but also other deliberate use of force which may result in deprivation of life, even if the outcome is unintended.
McCann and others v. the UK (n 36) para. 148, confirming Stewart v. the UK (Decision), App. No. 10044/82 (ECtHR 10 July 1984), para. 15.
Salman v. Turkey [GC] (n 31) para. 97.
McCann and others v. the UK (n 36) para. 149.
Salman v. Turkey [GC] (n 31) para. 98. The proportionality requirement is not reflected in the right to life provisions, but is read into the qualification of absolutely necessary as opposed to merely necessary. Hessbruegge, Human Rights and Personal Self-Defense (n 19) p. 170.
un hrc, Draft General Comment 36 (n 10) para. 18. See also Gloria Gaggioli, Expert Meeting on the Use of Force in Armed Conflict: Interplay Between the Conduct of Hostilities and Law Enforcement Paradigms (icrc, Geneva, 2013,
un hrc, Draft General Comment 36 (n 10) para. 18. See also Murray et al., Practitioners’ Guide (n 5) p. 125, and Hessbruegge, Human Rights and Personal Self-Defense (n 19) p. 105.
echr (n 23) Article 2(2).
See e.g. un hrc, Draft General Comment 36 (n 10) para. 18. See also Daniel D. Nsereko, ‘Arbitrary Deprivation of Life: Controls of Permissible Deprivations’, in B. G. Ramcharan (ed.), The Right to Life in International Law (Martinus Nijhoff Publishers, Dordrecht/Boston/Lancaster, 1985) p. 258.
For echr (n 23) this is regulated in Article 15(2).
ICJ Nuclear Weapons Advisory Opinion (n 13) para. 25, commenting on the right to life under the iccpr. For a discussion of this paragraph, see e.g. Dale Stephens, ‘Human Rights and Armed Conflict – The Advisory Opinion of the International Court of Justice in the Nuclear Weapons Case’, 4 Yale Human Rights and Development Journal 1 (2001), Article 1. The status of loac as lex specialis is further dealt with in Section 4.4.
See also Murray et al., Practitioners’ Guide (n 5) pp. 119 and 123.
Note that authority in domestic legislation does not automatically prevent the use of force from being arbitrary. According to General Comment 36, “A deprivation of life may be authorized by domestic law and still be arbitrary. The notion of “arbitrariness” is not to be equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability, and due process of law as well as elements of reasonableness, necessity, and proportionality.” un hrc, Draft General Comment 36 (n 10) para. 18.
Murray et al., Practitioners’ Guide (n 5) p. 125.
ibid.
Tagayeva and Others v. Russia, App. No(s) 26562/07, 14755/08, 49339/08, 49380/08, 51313/08, 21294/11, 37096/11, Judgment (Merits and Just Satisfaction) (ECtHR, 13 April 2017), paras. 562–274; Kerimova and Others v. Russia, App. No(s). 17170/04, 20792/04, 22448/04, 23360/04, 5681/05, 5684/05, Judgment (Merits and Just Satisfaction) (ECtHR, 3 May 2011), para. 248; Isayeva v. Russia (Judgement), App. No. 57950/00, Former First Section (ECtHR, 24 February 2005), para. 181; and McCann and Others v. the UK (n 36) para. 294.
Murray et al., Practitioners’ Guide (n 5) p. 136. See also Finogenov and Others v. Russia (n 36) para. 210, and McCann and Others v. the UK, ibid, para. 194.
Kerimova and Others v. Russia (n 68) para. 246. For this reason, the Court held that it “may be prepared to accept that the Russian authorities had no choice other than to carry out aerial strikes in order to be able to take over Urus-Martan, and that their actions were in pursuit of one or more of the aims set out in paragraph 2 (a) and (c) of Article 2 of the Convention”. ibid, para. 247.
Gaggioli, The Use of Force in Armed Conflict (n 58) p. 9, fn. 33. See also Hessbruegge, Human Rights and Personal Self-Defense (n 19) p. 180.
In Gülec v. Turkey, for instance, the ECtHR concluded that the use of machine guns to disperse demonstrators could not be regarded as proportionate. Gülec v. Turkey (Judgement), App. No. 21593/93 (ECtHR, 27 July 1998), paras. 68 and 71.
See Section 8.2.7.
See generally Council of Europe, Recommendation CM/Rec(2010)4 of the Committee of Ministers to Member States on Human Rights of Members of the Armed Forces (24 February 2010,
William Absresch, ‘A Human Rights law of Internal Armed Conflict: The European Court of Human Rights in Chechnya’, 16 European Journal of International Law 740 (2005), p. 757.
See also Noëlle Quénivet, ‘The Right to Life in International Humanitarian Law and Human Rights Law’, Chapter xii in Roberta Arnold and Noëlle Quénivet, International Humanitarian Law and Human Rights Law – Towards a New Merger in International Law (Martinus Nijhoff Publishers, Boston, 2008) p. 343: “hrl applies to both civilians and combatants/fighters, i.e. it does not know of this distinction.”
Engel and others v Netherlands, App. No(s) 5100/71, 5101/71, 5102/71, 5354/72, 5370/72, Judgment (Merits) (ECtHR, 8 June 1976), para. 54.
Prosecutor v. Erdemovic (Judgement), Case No. IT-96-22-A, icty, Appeals Chamber, 7 October 1997, Joint Separate Opinion of Judge McDonald and Judge Vohrah, para. 84.
Dale Stephens, ‘Rules of Engagement and the Concept of Unit Self-Defense’, 45 Naval Law Review 126 (1998), p. 147. Stephens go on to argue that self-defence is a non-derogable right and even an obligation, although the legal authority for these claims is unclear.
The UK Supreme Court has held that “it clear that it would not be compatible with the characteristics of military life to expect the same standard of protection as would be afforded by article 2(1) to civilians who had not undertaken the obligations and risks associated with life in the military”. Smith and others (FC) (Appellants) v The Ministry of Defence (Respondent) [2013] uksc 41, para. 71. See also Park, The Right to Life in Armed Conflict (n 29) p. 181.
On lawful acts of war, see Section 5.1.2.
Council of Europe, Human Rights of Members of the Armed Forces (n 74) para. 6, emphasis added.
See also Park, The Right to Life in Armed Conflict (n 29) p. 181: “genuine mistakes by military commanders and tactical decisions made in the heat of battle are unlikely to amount to substantive violations of Article 2.” As a result, “the areas likely to attract scrutiny in respect of battlefield operations relate to the way in which military personnel are trained, deployed, and equipped, rather than the decisions taken by military commanders in the heat of battle that might expose their subordinates and colleagues to risk”. ibid.
This issue is examined further in Section 8.2.10.
See further Section 8.2.3.
Defensive force not based on self-defence is introduced as a ‘use of force’ category in Section 3.3, while its relationship with loac is examined in Chapter 9.
See e.g. Smith and others v The Ministry of Defence (n 80), and R (Smith) v Secretary of State for Defence [2010] uksc 29.
For a detailed discussion, see Park, The Right to Life in Armed Conflict (n 29) pp. 183–189.
According to Murray et al., “the scope of extra-territorial jurisdiction under the European Convention of Human Rights has been progressively clarified in the numerous cases on Article 1 jurisdiction of the last decade”. Murray et al., Practitioners’ Guide (n 5) p. 62.
Al Skeini and others v. the United Kingdom (Judgement), App. No. 55721/07 (ECtHR, 7 July 2011), paras. 133–140. See also Murray et al., Practitioners’ Guide (n 5) pp. 65–66.
Murray et al., ibid p. 66.
See e.g. Jaloud v. the Netherlands (Judgement) (n 29).
iccpr (n 23).
See UN Human Rights Committee, Summary Record of the 1405th Meeting (24 April 1995) U.N. Doc. CCPR/C/SR.1405, pp. 6–7, para. 20. See also U.S. Department of Defense (DoD), Law of War Manual (December 2016 update, Office of the General Counsel of the Department of Defense, Washington, 2016,
UN Human Rights Committee, General Comment No. 31 – The Nature of the General Legal Obligation Imposed on States Parties to the Covenant [26 May 2004] U.N. Doc CCPR/C/21/Rev.1/Add. 13, para. 10.
icj Wall Opinion (n 43) paras. 108–111.
icj Armed Activities Case (n 43) para. 216.
un hrc, Draft General Comment 36 (n 10) para. 66.
See e.g. Murray et al., Practitioners’ Guide (n 5) p. 61. For a detailed analysis of extraterritorial application of human rights more in general, see ibid, Chapter 3.
un hrc, Draft General Comment 36 (n 10) para. 66. See also un hrc, General Comment 31 (n 95) para. 10, where it is made clear that the Convention “also applies to those within the power or effective control of the forces of a State Party acting outside its territory, regardless of the circumstances in which such power or effective control was obtained, such as forces constituting a national contingent of a State Party assigned to an international peace-keeping or peace-enforcement operation”.
Melzer, Human Rights Implications of the Usage of Drones and Unmanned Robots in Warfare (n 35) p. 32, fn. 146, emphasis added. The point is made in the context of innocent bystanders.
According to Melzer, the fact that icj in cases concerning the prohibition on arbitrary deprivation of life of persons not engaged in military hostilities “did not find it necessary to assess State practice in order to prove the binding nature of these provisions suggests that it did not construe them as obligations of customary law (State practice and opinio juris), but derived them directly from “general principles of law recognized by civilized nations” within the meaning of Article 38(1)(c) icj Statute.” Melzer, Human Rights Implications of the Usage of Drones and Unmanned Robots in Warfare (n 35) p. 19. See also Antonio Cassese et al., International Criminal law (Oxford University Press, Oxford, 2013) p. 210, and Quénivet, ‘The Right to Life in ihl and hrl’ (n 76) p. 331, both suggesting that the international norms protecting the right to life have the rank of jus cogens.
Jaloud v. the Netherlands (Judgement) (n 29) para. 226, and Al Skeini and others v. the UK (Judgement) (n 90) para. 137. See also Murray et al., Practitioners’ Guide (n 5) pp. 62–63.
See also Park, The Right to Life in Armed Conflict (n 29) p. 177.
Corn, ‘Public Authority to Use Force in Military Operations’ (n 1) p. 35.
See also ibid, p. 35, fn. 153, where he explains that “what constitutes an unlawful use of force in the context of armed conflict is fundamentally different from what is tolerated outside the ambit of hostilities. What is important, however, is the recognition that in either situation, the authority states may confer on their agents to employ force on their behalf is not unfettered”.
ibid, pp. 37–38.
David Kretzmer, ‘Targeted Killing of Suspected Terrorists’, 16(2) European Journal of International Law 171 (2005), p. 185. Melzer makes the same argument: the fact that the right to life is customary law does not imply “that States would be obliged to actively protect the right to life outside their territorial jurisdiction, but it does require that States refrain from deliberately infringing the right to life in their extraterritorial activities”. Melzer, Human Rights Implications of the Usage of Drones and Unmanned Robots in Warfare (n 35) p. 18. See also Corn, ‘Public Authority to Use Force in Military Operations’ (n 1) p. 35.
See also Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GC I) [1949], Laws of Armed Conflict, printed in Dietrich Schindler and Jiri Toman, The Laws of Armed Conflicts (Martinus Nijhoff Publisher, 1988) pp. 459ff., Article 50; Geneva Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GC II) [1949], ibid, pp. 485ff., Article 51; Geneva Convention (iii) relative to the Treatment of Prisoners of War (GC III) [1949], ibid, pp. 507ff., Article 130; Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (GC IV) [1949], ibid, pp. 575ff., Article 147; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) [1977], ibid, pp. 775ff., Article 4(2)(a); and icrc cil Study (n 11) Rule 89.
Jus ad bellum regulates the initial use of force or threat of use of force by one State against another State or against groups on the territory of another State. Such acts are prohibited by the UN Charter (n 21) in Article 2(4), but there are exceptions to this rule. The most commonly recognised exceptions are: mandate from the UN Security Council pursuant to UN Charter Chapter vii and the right of States to act in self-defence, as recognised in UN Charter Article 51. If the State whose sovereignty could have been violated consents to the presence of foreign forces, there is no violation of Article 2(4), and it will in practice be an exception to the prohibition on the use of force.
Joseph HH Weiler and Abby Deshman, ‘Far Be It from Thee to Slay the Righteous with the Wicked: An Historical and Historiographical Sketch of the Bellicose Debate Concerning the Distinction between Jus ad Bellum and Jus in Bello’, 24(1) European Journal of International Law 25 (2013).
See e.g. Dinstein, War, Aggression and Self-Defence (n 22) p. 167.
Marko Milanovic, ‘A Non-Response to Weiler and Deshman’, 24 European Journal of International Law 63 (2013), p. 65.
Kritsiotis, ‘War and Armed Conflict: Parameters’ (n 6) p. 11.
See e.g. United States vs. List et al. (‘The Hostages Trial’) (Nuremberg, 1948) 11 nmt 1230, p. 1247. See also Hersch Lauterpacht, ‘The Limits of the Operation of the Law of War’, 30 British Yearbook of International Law 206 (1953), at 215–220.
icrc, GC I Commentary (n 4) para 186, and Pictet (ed.), GC I Commentary (n 4) p. 27.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of victims of International Armed Conflicts (Protocol I) [1977], printed in Schindler and Toman, The Laws of Armed Conflicts (n 109) pp. 711ff, Preamble, Para 5: “the provisions of the Geneva Conventions of 12 August 1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict”.
icrc, GC I Commentary (n 4) commentary to Common Article 2, paras. 215–216.
Prosecutor v. Boskoski and Tarculovski (Judgement), Case No. IT-04-82-A, icty, Appeals Chamber, 19 May 2010, §44, referring to Prosecutor v Kordic and Cerkez (Judgement), Case No. IT-95-14/2-A, icty, Appeals Chamber, 17 December 2004, para. 812; and Prosecutor v. Martic, (Judgement), Case No. IT-95-11-A, icty, Appeals Chamber, 8 October 2008, para. 268.
Rome Statute of the International Criminal Court [hereinafter: Rome Statute], opened for signature 17 July 1998, 2187 unts 3 (entered into force 1 July 2002), Article 31(c). Commenting on this last sentence of the provision, Albin Eser explains its importance in the following way: “Most fundamentally, “self-defence” as known in public international law and as used in criminal law is to be distinguished.” This entails, he explains further, that “‘private self-defence’ (…) is not privileged only because its operational framework is legal, nor is it foreclosed only because the operational context is illegal – just as ius ad bellum and actio in bello are to be kept distinct”. Albin Eser, ‘Article 31. Grounds for excluding criminal responsibility’, in Otto Triffterer, Comments on the Rome Statute of the International Criminal Court – Observer’s Notes, Article by Article (2nd ed, Beck/Hart, München, 2008) pp. 879–880, footnote omitted. See also: Massimo Scaliotti, ‘Defences Before the International Criminal Court: Substantive Grounds for Excluding Criminal Responsibility – Part 1’, 1 International Criminal Law Review 111 (2001), p. 171; Kai Ambos, ‘Other grounds for excluding criminal responsibility’, in Antonio Cassese, Paola Gaeta, John R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court – A commentary, Volume I (Oxford University Press, Oxford, 2002) pp. 1033 and 1034; Cassese et al., International Criminal Law (n 102) p. 211; Mark Klamber, ‘Article 31(1)(b)’, Commentary on the Law of the International Criminal Court (clicc) (updated 30 June 2016,
un ilc, ‘Draft Articles on State Responsibility with Commentaries’, Yearbook of the International Law Commission, 2001, Vol. II, Part Two, p. 30, at p. 74, Article 21, Commentary para 3.
Weiler, and Deshman, ‘Far Be It from Thee to Slay the Righteous with the Wicked’ (n 112) p. 27.
Weiler and Deshman appear to place the icrc into this latter category, but their arguments seem to confuse the concept of ‘hors de combat’ with protected civilians, which they refer to as ‘innocent civilians’. ibid, pp. 41–42.
Dinstein, War, Aggression and Self-Defence (n 22) p. 168. See also Marco Sassoli, ‘Jus ad Bellum and Jus in Bello – The separation between the Legality of the Use of Force and Humanitarian Rules to Be Respected In Warfare: Crucial or Outdated’, in Michael N. Schmitt and Jelena Pejic (eds.), International Law and Armed Conflict: Exploring the Faultlines: Essays in Honour of Yoram Dinstein (brill, 2007) p. 246.
icty, Final Report to the Prosecutor by the Committee Established to review of the nato bombing campaign against the Federal Republic Yugoslavia [hereinafter: otp Report] (13 June 2000,
nato, STANAG 2449: Training in the Law of Armed Conflict, Annex F to ATrainP-2, Edition A Version 1, March 2013 (available at
ibid, p. F-15. See also U.S. DoD, Law of War Manual (n 94) p. 87.
Dinstein, War, Aggression and Self-defence (n 22) p. 169.
Weiler and Deshman, ‘Far Be It from Thee to Slay the Righteous with the Wicked’ (n 112) p. 35.
U.S. DoD, Law of War Manual (n 94) p. 87.
Caroline Incident Letters, published in British and Foreign State Papers, 1840–1841 (London, Ridgeway, 1857, vol. 29, p. 1126,
Corn, ‘Public Authority to Use Force in Military Operations’ (n 1) p. 27. See further Section 8.2.10 for a discussion of the ability of military orders to limit the soldiers’ ability to rely on self-defence, the only legal basis that enables them to use force independently.
Weiler and Deshman, ‘Far Be It from Thee to Slay the Righteous with the Wicked’ (n 112) p. 27.
Sassoli, ‘Jus ad Bellum and Jus in Bello’ (n 125) pp. 248–249.
ibid, p. 248. See also Permanent Court of Arbitration, Eritrea-Ethiopia Claims Commission – Partial Award: Central Front – Ethiopia’s Claim 2, 28 April 2004, Reports of International Arbitral Awards, Vol xxvi, pp. 155–194, paras. 27–31 and 78.
For a brief discussion of this example, see Sassoli, ‘Jus ad Bellum and Jus in Bello’, ibid, p. 260.
For an example of the conflationist approach, see the U.S. DoD, Law of War Manual (n 94) p. 57: “in assessing the military advantage of attacking an object, one may consider the entire war strategy rather than only the potential tactical gains from attacking that object”. See also pp. 215–216: “‘military advantage’ is not restricted to immediate tactical gains, but may be assessed in the full context of the war strategy” (footnote omitted). This issue is also raised in Section 5.5.
icrc, GC I Commentary (n 4) commentary to Common Article 1, para 188.
Sassoli, ‘Jus ad Bellum and Jus in Bello’ (n 125) p. 247.
Kenneth Watkin, Warriors Without Rights?: Combatants, Unprivileged Belligerents, and the Struggle Over Legitimacy (Program on Humanitarian Policy and Conflict Research Occasional Paper Series, 2005) Volume 2, pp. 12–16, and Kenneth Watkin, ‘Opportunity Lost: Organized Armed Groups and the icrc “Direct Participation in Hostilities” Interpretive Guidance’, 42 New York University Journal of International Law and Policy 641 (2009–2010), pp. 667–674.
Terry Gill, ‘Some Considerations Concerning the Role of the Ius as Bellum in Targeting’, Chapter 5 in Paul AL Ducheine, Michael N. Schmitt, and Frans Osinga, eds., Targeting: The Challenges of Modern Warfare (Asser Press, 2016) pp. 104–105.
UN, Secretary-General’s Bulletin on the Observance by United Nations Forces of International Humanitarian Law, 38 ILM 1656 (1999).
Judith Gardam, ‘Proportionality and Force in International Law, 87 American Journal of International Law 391 (1993), p. 393.
The Kosovo campaign may be perceived as rare example of humanitarian intervention, but it also gained the support of the UN Security Council and was eventually authorised by UN S.C. Res. 1244 (Kosovo) (10 June 1999) UN Doc S/RES/1244
Weiler and Deshman, ‘Far Be It from Thee to Slay the Righteous with the Wicked’ (n 112) p. 44.
Ian Henderson, The Contemporary Law of Targeting: Military Objectives, Proportionality and Precautions in Attack under Additional Protocol I (Martinus Nijhoff Publishers, Leiden/Boston, 2009) p. 154. See also Michael Bothe, ‘The Protection of the Civilian Population and nato Bombing on Yugoslavia: Comments on a Report to the Prosecutor of the icty’, 12(3) European Journal of International Law 531 (2001), at p. 535.
William H. Boothby, The Law of Targeting (Oxford University Press, Oxford, 2012) p. 527.
Sassoli, ‘Jus ad Bellum and Jus in Bello’ (n 125) p. 261.
See e.g. unsc, ‘Letter dated 3 June 2016 from the Permanent Representative of Norway to the United Nations addressed to the President of the Security Council’, U.N. Doc. S/2016/513 (3 June 2016). See also references in Chapter 6, note 101.
See e.g. ICRC CIL Study (n 11) Rule 99.
On the distinction between lawful and unlawful combatants, see also Section 5.2.
See also Milanovic, ‘A Non-Response to Weiler and Deshman’ (n 114) p. 65.
See generally Kritsiotis, ‘War and Armed Conflict: Parameters’ (n 6) pp. 12–13.
Weiler and Deshman, ‘Far Be It from Thee to Slay the Righteous with the Wicked’ (n 112) p. 40, and Sassoli, ‘Jus ad Bellum and Jus in Bello’ (n 125) p. 255.
Sassoli, ‘Jus ad Bellum and Jus in Bello’, ibid, p. 253.
See e.g. ICJ Nuclear Weapons Advisory Opinion (n 13) para 39.
ibid, para. 105(2)(e).
For a useful overview of the debate, see Dinstein, War, Aggression and Self-Defence (n 22) pp. 172–173 and Weiler and Deshman, ‘Far Be It from Thee to Slay the Righteous with the Wicked’ (n 112) pp. 45–49.
ICJ Palestinian Wall Opinion (n 43) para 139, discussed in Sassoli, ‘Jus ad Bellum and Jus in Bello’ (n 125) p. 251.
Case Concerning Oil Platforms (Iran v United States), I.C.J. Reports [2003] 161, pp. 186–7, discussed in Dinstein, War, Aggression and Self-Defence (n 22) p. 173. See also James A. Green, ‘The Oil Platforms case: An Error in Judgement?’, 9 Journal of Conflict and Security Law 357 (2004), pp. 380–381, and James A. Green and Christopher P.M. Waters, ‘Military Targeting in the Context of Self-defence Targeting’, 84 Nordic Journal of International Law 3 (2015).
ICJ Armed Activities Case (n 43) paras. 153 and 165 (jus ad bellum) and paras. 206–208, 211, and 219 (jus in bello).
U.S. DoD, Law of War Manual (n 94) pp. 40–41 and 88.
Carl von Clausewitz, On War (Michael Howard and Peter Paret (eds/trs), Princeton University Press, Princeton NJ, 1984) p. 607.
Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Cambridge University Press, 2006) p. 17.
ibid, pp. 23–24.
In fact, Koskenniemi argues that “international law is singularly useless as a means for justifying or criticizing international behaviour”. ibid, p. 67.
Alf Ross, ‘Validity and the Conflict between Positivism and Natural law’, in Stanley L. Paulson and Bonnie Litschewski Paulson, Normativity and Norms: Critical Perspectives on Kelsenian Themes (Clarendon Press, Oxford, 1998) pp. 147–163, at p. 151.
Milanovic, ‘A Non-Response to Weiler and Deshman’ (n 114) pp. 64–65 (footnote omitted).
See also U.S. DoD, Law of War Manual (n 94) p. 86.
St. Petersburg Declaration (Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight) [29 November / 11 December 1868] in Schindler and Toman, The Laws of Armed Conflicts (n 109) pp.102ff. The basic loac concepts are further examined in Section 5.1.1.
Sigrid Redse Johansen, On military necessity: And the commander’s assessment of military necessity under the international law of armed conflict during conduct of hostilities (PhD thesis, University of Oslo, 2017, copy on file with the author, forthcoming cup publication) p. 27.
See e.g. Christopher Greenwood, ‘Self-Defence and the Conduct of International Armed Conflict’, in Yoram Dinstein and Mala Tabory (eds.), International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne (Martinus Nijhoff Publishers, 1989) p. 286 vs. 275.
Christopher Greenwood, ‘Historical Development and Legal Basis’, Chapter 1 in Dieter Fleck (ed.), The Handbook of International Humanitarian Law (Oxford University Press, Oxford) 2009, p. 35 (footnote omitted). Note that the text is reprinted in the 3rd edition (2013, at p. 35), where the author of the updated chapter is Mary Ellen O’Connell.
See also Johansen, On military necessity (n 172) p. 27.
Clausewitz, On war (n 164) p. 606. Later in the chapter (at p. 610), he went on to emphasise that: “war is an instrument of policy. It must necessarily bear the character of policy and measure by its standards. The conduct of war, in its great outlines, is therefore policy itself, which takes up the sword in place of the pen, but does not on that account cease to think according to its own laws”.
UN Charter (n 21) Article 103.
UN S.C. Res 2011 (Libya), U.N. Doc. S/RES/2011 [12 Oct. 2011], p. 4. See also U.S DoD, Law of War Manual (n 94) p. 88, and Keiichiro Okimoto, ‘The Relationship Between jus ad bellum and jus in bello’, Chapter 56 in Marc Weller (ed.), The Oxford Handbook of the Use of Force in International Law, Oxford University Press, Oxford, 2015, pp. 1218–1223.
For a more detailed discussion of how jus ad bellum may impact the jus in bello, see Gill, ‘Some Considerations Concerning the Role of the Ius as Bellum in Targeting’ (n 142), and Greenwood, ‘Self-Defence and the Conduct of International Armed Conflict’ (n 173) pp. 273–288.
AP I (n 118) Article 91.
See e.g. un ilc, ‘Draft Code of Crimes against the Peace and Security of Mankind’, Report of the International Law Commission on the work of its 48th Session 6 May – 26 June 1996, Yearbook of the International Law Commission 1996, Vol II, Part Two, p. 17, Commentary to Article 16, p. 43.
Rome Statute of the International Criminal Court [hereinafter: Rome Statute], opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002), Article 8 bis (1) (inserted 2010).
See also Christopher Greenwood, ‘The relationship between the ius ad bellum and ius in bello’, Review of International Studies, Vol. 9, No. 4 (Oct., 1983), pp. 221–222.
See also Murray et al., Practitioners’ Guide (n 5) p. 88.
The relationship between loac and State self-defence, or the jus in bello and jus ad bellum in general, is dealt with in Section 4.3, while the relationship in practice is considered in Section 6.24.
See also Prosecutor v. Kunarac et al. (Judgement), Case no. IT-96-23-T & IT-96-23/1-T, icty, Trial Chamber, 22 February 2001, para. 470, and Gaggioli, The Use of Force in Armed Conflict (n 58) pp. 6–8.
The lex specialis status of loac is for instance confirmed in Ex Parte Quirin, 371 U.S. 1 (1942); ICJ Palestinian Wall Opinion (n 43) para 106; ICJ Nuclear Weapons Advisory Opinion (n 13) para. 25.
See in particular Marko Milanovic, ‘The Lost Origins of Lex Specialis’, in Jens Ohlin (ed.), Theoretical Boundaries of Armed Conflict and Human Rights (asil Studies in International Legal Theory, Cambridge University Press, Cambridge, 2016) pp. 78–117. See further Dinstein, Conduct of Hostilities (n 39) pp. 27–45; W. Hays Parks, ‘Part IX of the icrc “Direct Participation in Hostilities” Study: No Mandate, No Expertise, and Legally Incorrect’, 42 New York University Journal of International Law and Policy 769 (2009–2010), pp. 797–799, especially footnote 86 which provides detailed overview of sources; and Gaggioli, The Use of Force in Armed Conflict (n 58).
Murray et al., Practitioners’ Guide (n 5) pp. 101–102.
See for instance GC I-IV CA 3, GC I Article 12, GC II Article 12, GC III Article 87, and GC IV Article 32 (n 109); AP I (n 118) Article 75(2); iccpr (n 23) Article 7, and echr (n 23) Article 3.
Dinstein, Conduct of Hostilities (n 39) p. 34. See also icrc, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law [hereinafter icrc Interpretive Guidance] (May 2009, prepared by Nils Melzer, available at
Gaggioli, The Use of Force in Armed Conflict (n 58) p. 8.
Corn, ‘Public Authority to Use Force in Military Operations’ (n 1) p. 42, citing Ben Emmerson (Special rapporteur on the Promotion of Protection of Human Rights and Fundamental Freedoms While Countering Terrorism), Report of the Special Rapporteur on the Promotion of Protection of Human Rights and Fundamental Freedoms While Countering Terrorism, §60, U.N. Doc. A/68/389 [September 18, 2013] (p.17), and Kenneth Watkin, ‘Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflicts’, 98 Am.J.Int.L. 1 (2004) (p. 18).
Dinstein, Conduct of Hostilities (n 39) p. 32.
As explained in the commentary to Article 55 of the Draft Articles on State Responsibility, “For the lex specialis principle to apply it is not enough that the same subject matter is dealt with by two provisions; there must be some actual inconsistency between them, or else a discernible intention that one provision is to exclude the other”. un ilc, ‘Draft Articles on State Responsibility with Commentaries’ (n 122) p. 140, Article 55, Commentary para. 4.
icj Nuclear Weapons Advisory Opinion (n 13) para. 106.
See also Murray et al., Practitioners’ Guide (n 5) p. 89.
See e.g. Hassan v. the UK (n 39) para. 104, stating that “It can only be in cases of international armed conflict, where the taking of prisoners of war and the detention of civilians who pose a threat to security are accepted features of international humanitarian law, that Article 5 [of echr (n 23)] could be interpreted as permitting the exercise of such broad powers”. See also Jann K. Kleffner, ‘Section IX of the icrc Interpretive Guidance on Direct Participation in Hostilities: The End of jus in bello Proportionality as We Know It?’, 45(1) Israel Law Review, 35 (2012), p. 48, where he explains that In “situations that, while occurring during an armed conflict, closely resemble those for which human rights standards have been developed with a greater degree of specificity”, these human rights standards are argued to be applicable.
See also Sections 4.2.1 and 4.2.3.
Murray et al., Practitioners’ Guide (n 5) p. 88, fn. 41.
echr (n 23) Article 15(2).
icj Nuclear Weapons Advisory Opinion (n 13) para. 25, and un hrc, Draft General Comment 36 (n 10) para. 68.
See also Prosecutor v. Kunarac et al. (Judgement) (n 186) para. 471.
See also ibid.
Francoise J. Hampson, ‘The relationship between humanitarian law and human rights law from the perspective of a human rights treaty body’, 90 International Review of the Red Cross 871 (September 2008), p. 562.
See further Sections 4.2.1 and 4.2.2 above.
There are different views on whether loac provides prohibitions or authorisations on the use of force, or a combination thereof. The view taken here is that loac consists of both permissions and restrictions that must be complied with. See also Section 5.1.1.
It is important to distinguish this criminal law concept of self-defence with the right and ability of military forces to defend themselves during an armed conflict. Because loac regulates the use of force both in offence and defence, the latter will in many cases be regulated by loac. However, as will be explained in Chapter 8, the right of military forces to defend themselves in any situation is commonly referred to as self-defence. This may cause confusion when attempts are made to clarify the true application of the criminal law concept to military operations involving participation in armed conflict.
Murray et al., Practitioners’ Guide (n 5) p. 102.
ibid.
See further Section 8.2.