In Hague law

We will now analyze the fundamental issue of who and what can
be targeted or cannot be targeted
The law on targeting is characterized by three principles
a.) Distinction
b.) Proportionality
c.) Precaution
How are they interrelated and may impose constraints on the
belligerents when they decided to attack
Military
a.) Distinction
b.) Proportionality
c.) Precaution

Principle of Distinction – Requires Belligerents to distinguish

civilians and combatants and between civilian objects and military
objects
NB: Attacks on civilian and infrastructure are prohibited but it is
also an case when there is to achieve a particular military
objective and sometimes civilian casualties are inevitable.
Framework: To establish and ascertain whether in particular
attack, the incidental harm cause to civilians and civilian objects
are lawful
Civilians and Civilian objects it has been defined in negative in the
sense that civilians are not military personal and therefore cannot
be military objectives
Law of targeting regulation is the principle of precaution
lays down a requirement that belligerents to take a series of
precautionary measures when attacking.

Regulation of the means and methods of warfare mainly focused

on the principle of means and methods of warfare

The principle of distinction and protection against attacks

The principle of distinction requires that parties to an armed
conflict must:

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“at all times distinguish between the civilian population and
combatants and between civilian objects and military objectives
and accordingly shall direct their operations only against military
objectives”

Combatants and military objectives may be lawfully

targeted; civilians and civilian objects may not.
which stated in its preamble that the only objective of war was to
weaken the military forces of the enemy at the core of IHL since
it pursues the most important objective of IHL: to protect
civilians and civilian objects from the effects of armed
conflict. The principle of distinction serves to mediate the
boundary between lawful attacks on military objects and unlawful
attacks on civilians and civilian objects.

In order for us to get a clearer idea of what the principle of

distinction entails, it is necessary first to examine the concept of
an attack.

a.) It is clear that ‘direct attacks’ against civilians and

civilian objects fall foul of the prohibitions entailed by the
principle of distinction.

This refers to those attacks which are specifically

directed against the civilians or civilian objects. The intention of
the attacker is precisely to strike those persons and objects.
According to scholars, it is in that sense that Art. 51 of API
and Art. 13 of APII prohibit attacks against civilians “as such”.

b.) The fundamental feature of indiscriminate attacks is

that they strike military objectives and civilians or civilian
objects without any distinction. The difference with direct
attacks mainly lies in the intent of the attacker. The author
of an indiscriminate attack does not specifically aim at
attacking civilians or civilian objects. As rightly emphasized
by a scholar,

Art. 51 of API identifies three types of indiscriminate attacks:

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 those which cannot be directed at a specific military objective;
 those which employ a method or means of combat which cannot
be directed at a specific military objective;
 and lastly those which employ a method or means of combat
whereby the effects cannot be limited to a military objective.
the distinction
between direct, indiscriminate or disproportionate attacks
rests on the intention of the attacker. The different categories
of violations of the prohibition against attacks on civilians and
civilian objects correspond to

 the intent to direct attacks specifically at civilians or civilian

objects,
 the lack of any concern to the attacker for potential civilian
causalities and
 the intent to target an objective despite the expectation that it
will cause excessive civilian harm relative to the direct and
concrete military advantage anticipated from the attack.

However, in practice the boundaries between these

categories are fluid The Protocol also mentions among such
attacks any

“attack by bombardment by any methods or means which treats

as a single military objective a number of clearly separated and
distinct military objectives located in a city, town, village or other
area containing a similar concentration of civilians or civilian
objects” (Art. 51, 5, a)).

This includes the practice, known as “carpet bombing or

saturation bombing”, which was significantly used during WWII
and consisted in the bombing of the whole area where several
military objectives were located. Conversely, when such

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objectives are close to each other, they can be treated as
a single military objective and the territory located between
them bombed. The proportionality of the attack will have
nonetheless to be assessed in light of the loss to civilians and
damages caused to civilian objects by such bombing.

Terrorist attacks
“the primary purpose of which is to spread terror among the
civilian population”.

As emphasized by the ICTY in the Galic case, such act of

violence “falls within the general prohibition of attacks on
civilians”. According to the Tribunal, those acts must be
“directed against the civilian population or individual civilians […]”
(para. 102) .

However, the Tribunal specified that “they shall not […] be limited
to direct attacks against civilians but may
include indiscriminate ordisproportionate attacks” (para.
102).

characteristic of such act of violence lies in the specific intent of

the attacker: its primary purpose must be to spread terror
among the civilian population.

, although acts of violence may rightly be interpreted

as included in the general concept of attack since attacks
encompass any act of violence, we may hardly argue the same
for the threat of such act. The prohibition of that
threat may then be considered as another inference from the
principle of distinction, alongside the prohibition on attacking
civilians and civilian objects.

Are all civilians protected against attacks?

 those who take part into the hostilities. Those
persons remain civilians but they are no longer immune
against attacks, as long as they directly participate to

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 the hostilities. This category exists both in NIACs and IACs
and we will begin this section by examining them.
 While all civilians who do not take part in hostilities are
protected, there is no easy answer as to how we can define
civilians. As you will see, the prevailing view is that, in
both NIACs and IACs, civilians are negatively
defined and include all those who are not members of
state or non-state armed forces. A person is
therefore either a civilian, protected against attacks or
being targetable only for such a time she or he takes part
into hostilities, or a member of armed forces, who can be
targeted at any time. The notions of (state and non-state)
armed forces and membership in those forces are therefore
crucial. The core part of this section will be devoted to
analyzing such notions.
 Finally, the last part of this section will also address
another exceptional category of persons: those who are
members of armed forces but are nevertheless
protected against attacks, that category being relevant
for both NIACs and IACs.
Civilians who are not protected against attacks

 when they directly participate in hostilities and

 for such a time of their participation.

 to determine the scope of the notion of direct participation in

hostilities have been mainly made on the basis of
a casuistic approach, referring to specific cases. Certainly,
this is the method employed by military manuals, of which
the British one is an illustrative example. According to
the British military manual,

 “[w]here civilians are taking a direct part in hostilities is a

question of fact. Civilians manning an anti-aircraft gun or
engaging in a sabotage of military installations are doing so.
Civilians working in military vehicle maintenance depots or

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 munitions factories or driving military transport vehicles are
not, but they are at risk from attacks on those military
objectives since military objectives may be attacked whether
or not civilians are present”.

The ICRC has attempted to provide a general, overarching

definition in its commentary of Art. 51, 3). According to the
ICRC, the term ‘direct participation in hostilities’ refers to all

 “acts which by their nature and purpose are intended to

cause actual harm to the personnel and equipment of the
armed forces”.

Guidelines on the notion of direct participation in

hostilities under IHL by the ICRC (2009), that an in-
depth abstract analysis

 “The act must be likely to adversely affect the military operations

or military capacity of a party to an armed conflict or,
alternatively, to inflict death, injury, or destruction on persons or
objects protected against direct attack (threshold of harm), and
 there must be a direct causal link between the act and the harm
likely to result either from that act, or from a coordinated military
operation of which that act constitutes an integral part (direct
causation), and
 the act must be specifically designed to directly cause the
required threshold of harm in support of a party to the conflict
and to the detriment of another (belligerent nexus).”

Civilians versus armed forces in NIAC

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 definition of civilians in NIACs is quite problematic. There
is no definition in IHL treaties.

civilians are definitely not those who are part of state armed
forces – regarding the definition of those forces, we refer to
the developments in the next subsection on civilians in IACs.

rebel groups are generally formed by civilians. Does this mean

that they receive the legal protections offered to civilians under
IHL? If we grant members of armed groups the rights of civilians
then they can only be targeted for such a time they are directly
participating in hostilities. Such a view is opposed to any idea
of membership to an armed group, which would make those
members targetable at any time as long as they are members of
the group and even if they do not directly take part to the
hostilities, for example when sleeping.

Several reasons may explain that view.

 It may result from the reluctance to recognize armed

groups as such as a party to an armed conflict and to give them
any status or form of legitimacy.
 However, it may also be advocated on humanitarian
grounds since it is very difficult to establish who is member of an
armed group in a NIAC. Members of such groups rarely
distinguish themselves from civilian population therefore there is
a risk that civilians be erroneously targeted. It therefore seems
commendable to only allow such civilians to be targeted when
they commit an act of hostility.

today only a minority of commentators subscribe to the

view that members of non-state armed groups are entitled to the
legal protections of civilians.

 Such a view seems unrealistic from of military perspective. It

would create a serious imbalance between the state armed forces

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 and those fighting against these forces. Members of the state
army could only attack the fighters in reaction to the hostilities
actively engaged against them while, themselves, being
targetable at any time.
 In addition and more fundamentally, this does not seem to be
in line with the notion of NIAC, which implies parties to an
armed conflict. Nor is it in line with either the wording of common
Art. 3 to the GC or AP II. Although these treaties do not define
civilians, both texts refer to armed forces of the state and non-
state parties to the conflict.
reflected in legal scholarship, case law and state practice, is
that civilians must be negatively defined: civilians are
all those who are not members of the armed
forces belonging to a party to the conflict, be that party the
state or the non-state actor. Non-state party to an armed
conflict include insurrectional, rebel, dissident or other non-
state movements. Such negative definition of the notion of
civilian implies that there are only two categories of
persons with no potential gap: a person is either a civilian
or a member of (state or non-state) armed forces.

Civilians versus armed forces in IACs

 regular armed forces, as defined under Art. 4 A (1) and (3) of

GC III as well as under Art. 43 of API;
 irregular armed forces, such as resistant fighters, members of
militia and volunteer corps, mentioned in Art. 4 A (2) of GCIII
and included in Art. 43 of API; you know that this Article contains
a general definition of state armed forces including both regular
and irregular ones;
 those persons mentioned in Art 4 A (6) of GCIII, namely
participants in a levée en masse.

In brief, the ‘civilians’ who are protected against attacks are

normally all persons who are neither members of the (regular

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 or irregular) state armed forces of parties to the conflict nor
participants in a levée en masse.

State armed forces are to be considered as regular or irregular if

they meet at least the two following general conditions,
which are also relevant for identifying armed forces whose
members are entitled to PoW status:

1. showing a sufficient degree of organization and

2. belonging to a party to the conflict.
We will now examine two potential
alternative interpretation

1.) A first alternative to the ICRC view is to

consider unlawful combatants under GCIII as
civilians, but without restricting the ability of the
enemy to target them at any time. The unlawful
combatants would be considered as members of such a
group (i.e. irregular state armed forces) and, although
civilians, being targetable as long as they remain
part of this group. That view has the merit to avoid
the twofold qualification but, as we have seen, it relies
on a controversial interpretation of the application of
the notion of direct participation in hostilities and is
therefore highly contentious.

2.) In order to avoid both that controversial

interpretation and a twofold qualification of the
unlawful combatants under GCIII, certain scholars have
advanced the position that such combatants
are civilians but only targetable when they are
directly taking part to the hostilitiesfor such a time
of that participation.

This position is underpinned by the concern that the very

fact that those unlawful combatants do not distinguish
themselves from the civilian population makes
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 it difficult for the planner of the attack to
identify them. Targeting must then be very cautious in
order to avoid any loss to civilians and should only take
place when it is clear that the person is engaged in
hostilities.

he approach creates a serious imbalance between

“unlawful combatants” who could only be targeted when
concretely engaged in a hostile act and the other
combatants who could be targeted at any time. In other
words, although being highly commendable for humanitarian
reason, such approach seems to be very difficult to
reconcile with military necessity and may ultimately be
counterproductive.

THE PRECAUTIONARY PRINCIPLE

the principles of distinction and proportionality,

belligerents cannot target civilians or civilian objects, and
can only attack military objectives with the expectation that
such attack will not cause excessive losses to civilians or
civilian objects in proportion to the anticipated military
advantage.

n order to increase the chances of respecting those obligations,

belligerents are obliged to adopt precautionary measures.
There are two types of such measures.

1. The first are those which must be taken by belligerents when

launching attacks. They are called “precautions in attack” and
result from the application of what is named the “principle of
precaution”, the third fundamental principle regarding the law of
targeting.
2. However, belligerents must take precautionary measures in
anticipation of attacks by the enemy. Indeed, as emphasized in
the ICRC Commentary on API, “[b]elligerents may expect their

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 adversaries to [carry out attacks] fully in accordance with their
treaty obligations and to respect the civilian population, but they
themselves must also cooperate by taking all possible precautions
for the benefit of their own population as is in any case in their
own interest”. This second type of precautionary measure is
called "precautions against the effects of attacks".
Precautions in attack
We may first identify a group three specific obligations of
precaution in attack. These are the following obligations
mentioned in Art. 57, §2, a) of API.

1. "- [to] do everything feasible to verify that the objectives to be

attacked are neither civilians nor civilian objects and are not
subject to special protection but are military objectives within the
meaning of paragraph 2 of Article 52 and that it is not prohibited
by the provisions of this Protocol to attack them;
2. - [to] take all feasible precautions in the choice of means and
methods of attack with a view to avoiding, and in any event
to minimizing, incidental loss of civilian life, injury to civilians
and damage to civilian objects;
3. - [to] refrain from deciding to launch any attack which may be
expected to cause incidental loss of civilian life, injury to
civilians, damage to civilian objects, or a combination thereof,
which would be excessive in relation to the concrete and direct
military advantage anticipated”.
These three obligations are imposed upon those “who
plan or decide upon an attack”. Normally, those persons
are higher ranking officers. Several states have emphasized
that those obligation were binding only upon “commanding
officer at the battalion or group level and above”,
otherwise they “might well place a burden of responsibility
on junior military personnel which ought normally to be
borne by those of higher rank”.

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 Precautions against the effects of attacks

In order to avoid or at least minimize damages to civilians and

civilian objects under their authority in case of attacks,
belligerents must undertake certain precautionary
measures with respect to their own territories. Some of
those measures can already be taken in time of peace. They are
mentioned under Art. 58 of API, which reads as follows:

“The Parties to the conflict shall, to the maximum extent feasible:

 (a) without prejudice to Article 49 of the Fourth Convention

[which applies in situations of occupation and prohibits transfers
of civilian population outside of the territory of the occupied
power], endeavour to remove the civilian population, individual
civilians and civilian objects under their control from the vicinity
of military objectives;
 (b) avoid locating military objectives within or near densely
populated areas;
 (c) take the other necessary precautions to protect the civilian
population, individual civilians and civilian objects under their
control against the dangers resulting from military operations.”

Only the general obligation imposed on belligerents to take all

feasible precautions to protect civilian population and civilian
objects under their control from the effects of attacks (Art. 58, c)
of API) is unequivocally a rule of customary international law.
Therefore, it is applicable to both IACs and NIACs.

The status of the other two obligations is less clear. The ICRC
Study on customary IHL indeed concluded that these two
obligations were norms “of customary international law applicable
in international and arguably also in non-international armed
conflicts”. However, as argued by the ICTY, they should exist
(and therefore on a customary basis as they are not provided in

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 IHL treaties) as a logical corollary of the principle of
distinction which is a customary norm applicable in NIACs.

IHL regulates both the means and methods of warfare.

Although neither term is defined in IHL treaties,

 “means of warfare” are commonly understood as referring to

weapons,
 while “methods of warfare” is concerned with any tactic or
strategical ways of conducting the hostilities, including ways
according to which belligerents use weapons.

That section will be devoted to issues concerning weapons.

Specific prohibitions, or regulation, of weapons

1868 St Petersburg Declaration, which prohibited the use of

exploding bullets under 400 grammes, or the 1907 Hague
Regulations prohibiting the use of poison.

A more recent example is the total ban on using antipersonnel

landmines by the 1997 Ottawa Convention.

The general prohibition of weapons causing superfluous

injury or unnecessary suffering

The majority of IHL rules are designed to protect those who do

not or do no longer take part in the hostilities. The so-called
“principle of superfluous injuries or unnecessary suffering”
is one of the rare principles protecting those who take part
in the hostilities.

It is enshrined in Art. 35, 2) of API, which prohibits the use of

“weapons, projectiles and material and methods of warfare of a

nature to cause superfluous injury or unnecessary suffering”.

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The general prohibition of weapons which have an
indiscriminate effect

the general prohibition on weapons having indiscriminate

effectsonly aims to protecting those who do not, or no longer,
take part to the hostilities, mainly the civilians.

The first category of prohibited methods or means of warfare

under Art. 51, 4) are those which, by their very nature or
design, cannot distinguish between civilians and combatants.
Concerning weapons, we use the expression “blind weapons”.
Leading examples are long-range missiles without an internal
guidance system, making impossible to aim at a specific point.

“States must never make civilians the object of attack and must
consequently never use weapons that are incapable of
distinguishing between civilian and military targets”.

[t]he reality . . . is that nuclear weapons might be used in a wide

variety of circumstances with very different results in terms of
likely civilian casualties. In some cases, such as the use of a low
yield nuclear weapon against warships on the High Seas or troops
in sparsely populated areas, it is possible to envisage a nuclear
attack which caused comparatively few civilian casualties. It is by
no means the case that every use of nuclear weapons against a
military objective would inevitably cause very great collateral
civilian casualties".

History Brief: The effects of nuclear weapons – Transcript

When a nuclear weapon detonates, there are many ways that it

can damage the human body. There are three major threats that
one must worry about: heat, blast and radiation.

First, those close to the detonation would stand no chance of

survival. At the centre of a nuclear explosion the temperature can
reach millions of degrees – enough to incinerate, or vaporise,
anything within several miles. The heat is intense enough to melt
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rocks and metal railroad ties. As one moves away from the
atomic blast, chance of survival becomes better, but still slim.
The heat produce by the blast is so intense that fatal third-degree
burns can be caused up to 25 miles away

the second threat of a nuclear explosion: a tremendous blast of

air pressure. This blast can produce winds in excess of a
thousand miles per hour. Buildings can instantly be levelled by
this massive current, causing even more fatalities and many
injuries. The blast could also be fatal through the shattering of
glass and other debris.

The third danger from a nuclear explosion comes from radiation.

Radiation is a form of energy which is harmful to living cells

legal analysis? :

Given the devastating effects of nuclear weapons, as shown in

the first video, on human beings and the environment, would do
you think that nuclear weapons are necessarily illegal under
international law? Should nuclear weapons be deemed as falling
into existing prohibitions or, if not, at least as incompatible with
the general prohibitions on weapons.

Or, do you think that nuclear weapons are not necessarily

illegal and that the legality would depend upon the
particular circumstances in which they are used. Perhaps you
think specific types of nuclear weapons, such as smart precise
nuclear weapons (such as the one shown in the second video),
may be likely to comply with IHL.

Perfidy
Denial of quarter

“[i]t is prohibited to order that there shall be no survivors, to

threaten an adversary therewith or to conduct hostilities on this
basis”.

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 In military terminology, it is prohibited to deny quarter.

Starvation
actually develops the more general principle according to which
“starvation of civilians as a method of warfare is prohibited”.

1. Siege warfare

Sieges consist in the encircling of a defended city or fortress,

while cutting off that city or fortress’s supply channels, in order to
hasten the surrender of the enemy.

2. Naval blockades

The prohibition on starving civilian also casts doubt on the legality

of naval blockades, whose aim is also to prevent the adversary
from supplies needed to conduct the hostilities. Essentially naval
blockades prevent both entrance and exit of vessels or
aircrafts of all states from the blockaded territory.

CHAPTER 6:

 the obligation for states to respect and ensure respect for IHL;
a.) It is generally accepted that this obligation is part of customary
law and applies to states in any type of armed conflict, as
well as in peace time.
b.) In NIACs however, the addressees of this obligation are only
states and not armed groups.

Common art.1 to the four Geneva Conventions and Art. 1 of API must also
be read in conjunction with the law of state responsibility.

c.) First, according to that law, states may be held internationally

responsible if they aid or assist other states in a breach of
international law (Art. 16 of the Articles on State Responsibility).
d.) There are also consequences for the law of responsibility in
relation to serious breaches of jus cogens norms (Arts. 40 and

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 41 of the Articles on State Responsibility). As we saw in
Chapter 2, in the case of serious violations of jus cogens rules,
all states are bound to respect negative and positive
obligations. It is worth recalling that the negative
obligations consist of a duty not to recognize a situation
created by such a serious breach as lawful and a duty of not
aiding or assisting the maintenance of that situation.
The positive obligation consists of a duty to cooperate in
order to put an end to the serious breach.
 the mechanisms provided by IHL treaties including the Protecting Powers,
the Bilateral Enquiry and the International Humanitarian Fact-Finding
Commission;
 the International Committee of the Red Cross;
 its position within the Red Cross and Res Crescent Movement,
 its main functions and
 its actions as a guardian of IHL.

The three components of the International Red Cross and Red Crescent
Movement are the following:

1. National Red Cross and Red Crescent Societies

National RC societies are regulated by the law of the state where they
operate. They act as a voluntary aid society, auxiliaries to the public
authorities of that state in the humanitarian field.

Originally, their mission was to support the military medical services of a

belligerent state in times of armed conflict. It now extends to a wide range
of humanitarian activities in situations of both war and peace. As well as
playing active roles in armed conflicts, RC societies help ameliorate
suffering in emergency situations, such as natural disasters, man-made
disasters, epidemics and mass refugee flights. They also cooperate with
the public authorities regarding the prevention of diseases, the
development of good health. They do this through the performance of a
range of tasks including setting up and managing hospitals, training

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 medical personnel, organizing blood donor clinics, assisting people with
disabilities, etc.
2. The International Federation of the Red Cross and Red Crescent
Societies (IFRC)

The IFRC is composed of all the National Red Cross and Red Crescent
Societies. Its main task is to safeguard the protection of victims in situations
of emergency outside of armed conflict zones. It leads and coordinates
relief assistance missions when emergencies break out.

3. The International Committee of the Red Cross (ICRC)

The ICRC was the original institution which the movement grew out
of. The ICRC describes its missions as follows:

“The [ICRC] is an impartial, neutral and independent organization whose

exclusively humanitarian mission is to protect the lives and dignity of
victims of armed conflict and other situations of violence and to provide
them with assistance. The ICRC also endeavours to prevent suffering by
promoting and strengthening humanitarian law and universal humanitarian
principles. Established in 1863, the ICRC is at the origin of the Geneva
Conventions and the International Red Cross and Red Crescent
Movement. It directs and coordinates the international activities conducted
by the Movement in armed conflicts and other situations of violence.”

FUNCTION ICRC
 one of the most significant task of the ICRC is to
visit protected persons, in particular those
deprived of their liberty.
 Guardian of IHL


 and other organizations extraneous to IHL, namely NGOs and the UN.
are involved in the alleviation of the consequences of armed conflict and
carry out a wide range of humanitarian activities, including the delivery of
urgent aid to victims, mediation between belligerents, the protection of

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 vulnerable persons, in particular women and children, the restructuring of
states affected by the hostilities or the return of displaced persons.

STATE RESPONSIBILITY

here are nevertheless two possibilities whereby the responsibility of

states for alleged violations of IHL will be heard before by an
international court:

 the first potential avenue is through the International Court of Justice.

We have cited a range of cases from the ICJ regarding IHL, and will cite
more in this chapter. However, the ICJ's jurisdiction - its legal ability to hear
cases - depends on both parties to the case giving their consent. In
practice, this limits the role of the ICJ.
 the second potential avenue is through the creation of ad hoc judicial
tribunals, such as the Ethiopia-Eritrea Claims Commission. Like bringing a
case before the ICJ, the creation of ad hoc tribunals generally requires the
agreement of both states.

basis tenets of the law of state responsibility.

1. Attribution of conduct

According to the terminology used in the Articles on State Responsibility,

an “internationally wrongful act of a State”, which entails the
responsibility of that state, has two elements:

- firstly there must be conduct which violates international law;

- secondly, this conduct must be attributable to a state.

However, states are abstract entities and cannot as such commit any
actions, let alone an action which violates international law. Violations of
international law are always committed by an individual (or a group of
individuals). As a result, a state may only be held responsible for a violation
of international law if the violation can be attributed to the state. We will

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 examine several relevant mechanisms for attributing violations of
international law, in particular of IHL, to states.

2. Circumstances precluding wrongfulness

Even if a violation of international law is attributable to a state, the state

will not be held responsible for the violation if it may justify its
conduct by invoking one of the six circumstances precluding
wrongfulness mentioned in the Articles on State Responsibility.

The circumstances that preclude wrongfulness are consent, self-

defence, countermeasures, force majeure, distress and necessity.

The presence of one of these circumstances, which we will analyze

later, renders conduct, which would ordinarily violate international
law,lawful. This explains why they are called “circumstances precluding
wrongfulness”.

3. Legal consequences

Several consequences stem from an internationally wrongful act of a state.

The first obligation is that the responsible state is under a duty

of cessation in relation to the wrongful conduct. Secondly, the “responsible
State is under the obligation to make full reparation for the injury caused
by that act” (Art. 31 of the ASR).

Some limited form of sanction is also provided for by the Articles on State
Responsibility.

Lastly, the Articles have the potential to impose obligations on all

states in the world in situations where certain specific norms of
international law are violated.
Attribution of "private" conduct
A state is not merely internationally responsible for a violation of IHL
committed by a public actor,

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 The first basis for states to be internationally responsible for the actions of
private individuals is when states direct or control those individuals.
According to Article 8,

“[t]he conduct of a person or group of persons shall be considered an act of

a State under international law if the person or group of persons is in fact
acting on the instructions of, or under the direction or control of, that State
in carrying out the conduct”.

1. The control must clearly go beyond the mere support taking the form of
financing, organizing,
2. training, supplying or equipping the relevant non-state actors.
3. The state must be involved in planning the operations, choosing the targets
and the provision
4. of operational support throughout.

the Articles on State Responsibility include six “circumstances precluding

wrongfulness

1. Consent

The most straightforward circumstance precluding wrongfulness

is consent, governed by Article 20 of the Articles on State Responsibility. If
a state consents to an ordinarily unlawful action, then the acting state bears
no responsibility under international law. It is important to note that consent
does not need to be given in advance.

2. Self-defence

Self-defence is another circumstance precluding wrongfulness, provided

by Article 21 of the Articles on States Responsibility. As you know, Article
51 of UN Charter exempts states from the prohibition of the use of
force in situations of self-defense. However, this exception applies solely to
the prohibition of the use of force (Article 2(4) of the UN Charter). Article
21 covers the potential violation of other international legal rules which
were breached whilst a state was in the process of defending itself.

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3. Counter-measures

The third circumstance precluding wrongfulness is counter-measures.

What is the basic idea of counter-measures? As international law is what
we term a ‘horizontal’ legal system, there are few international
institutions empowered to enforce violations of international law.
Therefore, states will frequently violate international law themselves, in
order to induce another state to follow their obligations.

Under Article 22 of the Articles on State Responsibility, it is lawful

to suspend the performance of certain obligations in response to prior
violations of international law. Three points should be noted.

- Firstly, that not all international rules may be violated in order to induce
compliance with other states. You may recall that it is prohibited for states
to use force to bring about compliance with international legal rules;

- Secondly, in order to be a valid circumstance precluding wrongfulness,

counter-measures must satisfy a series of procedural and substantive
requirements laid down in Chapter 2 of Part III of the Articles on State
Responsibility, not least among these requirements is necessity for the
state being subjected to counter-measures to be responsible for an
internationally wrongful act.

- Thirdly, the international legal obligation which is no longer being

performed, is merely suspended. Once the basis for the counter-measures
ceases, the legal obligation resumes.

4. Force majeure

Force majeure is a new concept in this course, but represents a very old
idea: namely that unforeseeable events may render the performance of
an obligation impossible. Article 23 defines force majeure as

“the occurrence of an irresistible force or of an unforeseen event, beyond

the control of the State, making it materially impossible in the
circumstances to perform the obligation”.

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 As you can see, this is a high threshold to meet. It is reasonably likely that
changing circumstances means that one party to a bargain no longer
desires or requires the other party to perform their obligations or that a
party may wish to escape from their duty. However, this falls far short of the
standard required by force majeure. Article 23 attaches two further
conditions:

- Firstly, that the intervening issue cannot have been brought about by the
conduct of the state seeking to avoid responsibility and;

- Secondly, that if one state assumes responsibility for a risk, they cannot
escape responsibility if the risk should materialize.

It cannot be stressed enough how rare it is for this to be accepted as a

circumstance precluding wrongfulness by an international tribunal.

5. Distress

Distress, as a circumstance precluding wrongfulness, is relatively similar to

force majeure. It deals with the specific situation where an individual
(whose conduct is attributable to a state) violates international legal
obligations in order to save their own life, or the life of those entrusted to
their care. Article 24 precludes wrongfulness where the only way to save
life was to violate international law.

However, unlike situations of force majeure, the actor is not acting

involuntarily. He or she makes a decision to violate international law but
only because it is the only way to save lives. Incidents involving distress as
a circumstance precluding wrongfulness typically include ships or aircraft
entering the territory of a state without permission because of mechanical
failure.

Like force majeure, distress does not apply to situations of danger brought
about by the conduct of the state claiming the exception.

6. Necessity

The final circumstance precluding wrongfulness is necessity (Article 25).

The basic idea behind necessity as a circumstance precluding
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 wrongfulness is that states should be allowed to protect essential
interests when the ordinary performance of their international legal
obligations would endanger these interests.

More than any of the others, this circumstance is open to abusively

expansive interpretations and, as a consequence, is subject to strict
conditions. In order to successfully claim that an action was necessary,
two cumulative conditions must be satisfied, and two scenarios are
expressly excluded.

- Firstly, the action must be the only way for the state to safeguard an
essential interest against a grave and imminent peril and it must not
endanger the essential interests of the state or states who are the recipient
of the obligation.

- Secondly, a state is precluded from claiming necessity if the obligation in

question excludes the possibility of invoking necessity or the states own
conduct has brought about the state of affairs.
Once it is determined that a state is responsible for the violation of an
international legal rule, a new set of legal relations is established
injured, non-injured and all states.

The first ‘new duty’ of the state responsible for a violation of

international law is precisely that the old duty
continues. The obligation which was unlawfully violated
continues despite the violation. An international legal obligation
is not simply terminated by its non-performance. This means that
the responsible state is obliged

 to perform the obligation,

 to put a stop to the violation of that obligation and

 to offer appropriate guarantees against non-repetition.

1. Injured states - any damage, whether material or
moral” suffered by the injured state as a result of the
violation.

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 The duty of restitution means that the responsible state is under the
obligation, insofar as it is possible, to restore the situation as it
existed prior to the breach.
 The duty of compensation entails pecuniary (financial)
compensation arises when restitution is not possible. The
compensation ought to cover all financially estimable damage,
including future benefits such as profit.
 The final form of reparation is satisfaction. This essentially means
that the responsible state acknowledges their responsibility, makes a
formal apology etc. It should be noted that the responsible state
cannot simply chose satisfaction in lieu of, for example,
compensation. Satisfaction only applies where the nature of the
violation means that it is unsuitable for restitution or compensation.
2. Non-injured states

The first basis is if the obligation is owed to a group of

states (including the invoking state) and protects the collective
interest of the group.

The second basis is if the obligation is "owed to the international

community as a whole".

3. All states

all states are under a requirement to cooperate through lawful

means to bring the breach to an end;

all states are under an obligation not to recognize any new

situations which arise because of the breach;

all state are prohibited to aid or assist in the maintaining of that

situation.

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