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Home Posts tagged "LOAC"

Can Incidental Starvation of Civilians be Lawful under IHL?

Published on March 26, 2019        Author: 

Two recent posts in the recent joint blog series on international law and armed conflict concluded that the siege of a defended locality was permitted under the Law of Armed Conflict (LOAC)/International Humanitarian Law (IHL), but subject to a series of constraints regarding the protection of civilians. The prohibitions on starvation of civilians (in Geneva Conventions Additional Protocol I Art 54, Additional Protocol II Art 14 and in customary law, applicable both to international and non-international armed conflicts) were in particular analysed in Gloria Gaggioli’s excellent post. Given that ‘the prohibition of starvation as a method of warfare does not prohibit siege warfare as long as the purpose is to achieve a military objective and not to starve a civilian population’ (ICRC Customary IHL database, Rule 53), she notes that it is in practice very difficult to prove that the purpose of a siege is the starvation of civilians. However, she goes on to argue, persuasively, that if a siege can be construed as an ‘attack’ the proportionality rule would apply, thereby requiring any incidental starvation of civilians to be assessed against the concrete and direct military advantage anticipated.

As starvation is so central to much of the suffering inflicted on civilian populations in today’s city sieges in the Middle East, I want to return to the question of whether starvation of civilians needs to be the purpose (or even a purpose) of a belligerent to fall within the prohibition and whether incidental starvation may be lawful (if it is not disproportionate), by way of offering some thoughts as to what a legal analysis of the purpose of the relevant siege tactics might look like. If the prohibition on the starvation of civilians was in practice reduced to a prohibition on excessive starvation of civilians, this would obviously severely restrict the protection offered by Art 54 API and Art 14 APII.

We need to ask, firstly, what is the actual conduct denoted by the term ‘siege’ and, secondly, what is the military objective to which starvation of civilians is incidental? Read the rest of this entry…

 
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Introducing Joint Symposium on Chatham House’s “Proportionality in the Conduct of Hostilities” Report

Published on January 28, 2019        Author: 

Editor note: This piece is cross-posted on Just Security.

In December 2018, the International Law Programme at Chatham House published a report, “Proportionality in the Conduct of Hostilities: The Incidental Harm Side of the Assessment,” analysing the key steps in making assessments about proportionality under international humanitarian law, with a particular focus on expected incidental harm to civilians and civilian objects.   

Chatham House prepared the report following a series of expert consultations, including participation from military and government lawyers, representatives of humanitarian organizations, and academics.  It also draws from review of IHL treaty texts, case law, and, to the extent practicable, military doctrine.

The report addresses three sets of questions about the rule of proportionality:  First, the report examines what it means for the harm to be caused by the attack and the concept of foreseeability of harm, the weight to be assigned to particular kinds of harm, and how to assess whether the expected incidental harm to civilians and civilian objects is excessive in relation to the anticipated military advantage.  Second, it analyses types of incidental harm to be considered in proportionality assessments.  Third, it explores vexing legal issues that arise in implementation of the rule in practice (such as the type of information commanders should assess in “after attack” battle damage assessments).

In collaboration with Chatham House, EJIL:Talk! and Just Security have invited leading international humanitarian law experts to contribute to a joint online symposium on key issues addressed in the report. Starting this afternoon, we will host the following series:

(1) Emanuela Gillard, Chatham House Report on Proportionality in the Conduct of Hostilities – Some Key Elements (EJIL: Talk! and Just Security)

(2) Adil Haque, Proportionality and Doubt (Just Security)

(3) Lawrence Hill-Cawthorne, The Chatham House Paper on Proportionality in the Conduct of Hostilities (EJIL: Talk!)

(4) Geoff Corn, Calibrating the Compass of Proportionality (Just Security)

 

 
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Joint Blog Series: Sieges, Evacuations and Urban Warfare: Thoughts from the Transatlantic Workshop on International Law and Armed Conflict

Published on January 17, 2019        Author: 

Editor’s Note: This post is part of the joint series of posts hosted by the ICRC Humanitarian Law & Policy BlogEJIL Talk! and Lawfare, and arising out of the 6th Transatlantic Workshop on International Law and Armed Conflict held at the European University Institute in Florence in July.

Conflict in urban or populated areas poses an enormous danger to civilians and to the civilian infrastructure that sustains the civilian population. The law of armed conflict (LOAC) requires that parties to a conflict take constant care ‘to spare the civilian population, civilians and civilian objects.’ During the conduct of hostilities, the principles of distinction, proportionality and precautions mandate rules for the identification of targets, minimization of incidental harm to civilians, and precautionary measures to avoid or minimize harm to civilians.

How to implement these principles and obligations is, of course, a significant challenge—but the questions of how to mitigate civilian risk and harm while carrying out the military mission go beyond the conduct of hostilities and are equally challenging and important. Our discussions at the Transatlantic Workshop highlighted and probed one particular set of concerns—how to balance different legal norms and operational considerations regarding evacuation and the corresponding prohibition of forced displacement, and sieges and the corresponding prohibition of starvation as a method of warfare.

Is evacuation of civilians an option? In what circumstances?

Imagine a military wants to evacuate civilians from an area—either within its own territory or in another State’s territory where the hostilities are expected or ongoing. The motivation is both humanitarian and based on military considerations: removing civilians from the area of hostilities protects them from harm and also frustrates the enemy’s attempts to use them as human shields or otherwise endanger them for tactical or strategic purposes. Read the rest of this entry…

 
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