(1) (a) “Air” or “airspace” means the air up to the highest altitude at which an aircraft can fly and below the lowest possible perigee of an earth satellite in orbit. Under international law, airspace is classified as either national airspace (that over the land, internal waters, archipelagic waters, and territorial seas of any State) or international airspace (that over contiguous zones, exclusive economic zones, the high seas, and territory not subject to the sovereignty of any State).
[Commentary]
- Every State has sovereignty over the airspace above its land and water territory.[31]
- Until the advent of the first artificial satellites in 1957, it was widely assumed that national airspace had no upper limit. However, once artificial satellites were launched into orbit around Earth, it soon became obvious that the area in which they travel does not come within any national airspace.
- Satellites in low Earth orbit have to travel at minimal speeds of about 8 km (5 miles) per second in order not to slip out of their orbit due to the force of gravity. Even very thin air will heat up and slow down a satellite due to friction. The atmosphere will cause such objects traveling below an altitude of approximately 100 km (about 328.000 feet) for any prolonged time to lose speed, fall down and burn up in the process. The lowest point of the orbit (“perigee”) of an artificial satellite will therefore have to be above that altitude.
- Aircraft, deriving their support in the atmosphere from the reactions of the air (see Rule 1 (d)), have not been able to reach – in sustained flight − altitudes where satellites travel. Jet planes have great difficulties exceeding 25 km (about 82.000 feet), while balloons can reach approximately 35 km (about 115.000 feet).[32]
- Because of the decreasing density of the air, winged aircraft have to travel at ever-higher speeds in order to reach higher altitudes. At an altitude of approximately 100 km, a winged aircraft has to travel at about 8 km/sec. This is equal to orbital velocity, which means that the centrifugal force would prevent it from falling down, thus making the concept of winged flight meaningless. While this altitude of ap-proximately 100 km is commonly accepted as distinguishing between aeronautical and astronautical flights, it has not gained universal approval for purposes of international law.
- Ballistic missiles and aircraft that for a limited period of time follow a ballistic trajectory can, in prin-ciple, reach any altitude, including the region between the “highest altitude at which an aircraft can fly” under present technology and “below the lowest possible perigee of an earth satellite in orbit”. It is not settled whether they would violate the airspace of any foreign State because of overflight at such intermediate altitude. Similar problems may arise if future technology makes it possible for some vehicle to hover or fly at such intermediate altitude, or to travel at orbital velocity at such altitude without slowing down and burning due to friction.
- For the purposes of Rule 1 (a), national territory encompasses land, internal waters, archipelagic waters and the territorial sea under the sovereignty of a given State.[33] As far as the territorial sea is concerned, it must be observed that the right of innocent passage – to which all foreign ships are entitled[34] – does not extend to the airspace above the water.
- As regards international straits[35] and archipelagic sea lanes[36], aircraft of all States enjoy the right of transit passage.
- National military manuals treat this subject in different ways and do not therefore throw much light on the question of the highest altitude of the national airspace.[37]
- “Territory not subject to the sovereignty of any State” refers to some parts of Antarctica.[38] In theory, it also refers to the possibility of new emerging islands in the high seas.
- Art. 1 of the Chicago Convention (“Sovereignty”): “The contracting States recognize that every State has complete and exclusive sovereignty over the airspace above its territory.”
- At the time of writing, the world altitude record for air-breathing jet propelled aircraft in controlled horizontal flight is 25.929 meters. Air balloons have reached 34.688 meters.
- Art. 2 of the Chicago Convention (“Territory”): “For the purposes of this Convention the territory of a State shall be deemed to be the land areas and territorial waters adjacent thereto under the sovereignty, suzerainty, protection or mandate of such State.”
- Art. 17 of UNCLOS (“Right of innocent passage”): “Subject to this Convention, ships of all States, whether coastal or land-locked, enjoy the right of innocent passage through the territorial sea.”
- Art. 38 of UNCLOS, see fn. 472.
- Art. 53 of UNCLOS, see fn. 473.
- Para. 217 of the German ZDv: “The dividing line between the airspace of the national territory of a state and outer space shall be drawn where, due to existing physical conditions, the density of the air is small enough to permit the employment of satellites. According to the present state of the art, the minimum flight altitude of satellites ranges between 80 and 110 km above ground level.”
Para. 12.13 of the UK Manual (“Vertical extent of airspace”): “Views differ as to the precise vertical and horizontal extent of airspace. For practical purposes, it can be said that the upper limit to a state’s rights in airspace is above the highest altitude at which an aircraft can fly and below the lowest possible perigee of an earth satellite in orbit. The result is that anything in orbit or beyond can safely be regarded as in outer space.”
Para. 1.10 of the NWP (“Outer space”): “The upper limit or airspace subject to national jurisdiction has not been authoritatively defined by international law. International practice has established that airspace terminates at some point below the point at which artificial satellites can be placed in orbit without free-falling to earth.”
- Para. 2 of Art. IV of the Antarctic Treaty: “No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or denying a claim to territorial sovereignty in Antarctica or create any rights of sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial sovereignty in Antarctica shall be asserted while the present Treaty is in force.”
(1) (b) “Air or missile operations” mean military operations in armed conflict involving the use of aircraft or missiles of all types; whether in offence or defence; and whether or not over the territory of one of the Belligerent Parties.
[Commentary]
- “Air or missile operations” is the generic phrase in this Manual referring to any military airborne activities. This includes attack and interception by all types of aircraft or missiles.
- The term “air or missile operations” covers not only the phase when the aircraft or the missile is in flight, but also activities directly connected to the actual use of the aircraft or missile such as deployment, launching, guidance or retrieval. Such activities can take place in the air, on the ground or from a vessel. They can also take place before, during or after the flight phase of the aircraft or missile.
- The phrase “military operations” means (i) operations involving actual or potential use of force against an enemy; and (ii) operations in direct support of the aforementioned operations.
- The words “in armed conflict” clarify that the military operations referred to in this Manual must take place in such context and not in connection with incidents that do not reach the legal threshold of armed conflict (see Section B). Operations for law-enforcement purposes are therefore not included, notwithstanding any use of force in their course. Such operations are normally conducted by police units, which are not considered combatants, unless incorporated into the armed forces.[39] Similar considerations apply to the coast guard.
- When the armed forces undertake operations in support of civil society that are not related to actual − or potential − use of force against an enemy in times of armed conflict, such operations are not considered “military” in the sense of this Manual, although they could be qualified as “military” under national law.
- The phrase “air and missile warfare”, as used in the title of this Manual, adverts to air or missile operations that are specifically related to hostilities. In addition to air or missile combat operations (see Rule 1(c)), air or missile operations include surveillance, weather, reconnaissance, search-and-rescue, transport and other operations that may not be directly related to ongoing hostilities.
- The inclusion of operations “whether in offence or defence” is intended to highlight the fact that an operation’s tactical or operational character has no bearing on the law of international armed conflict applicable to it. Thus, for instance, there is no distinction in the terminology of this Manual between an offensive attack and a defensive counter-attack. For the definition of “attack”, see Rule 1 (e).
- Subject to the relevant rights of Neutrals (see Section X), Rule 1 (b) emphasizes that air or missile operations may take place anywhere. This includes: (i) the airspace above the national territory of all Belligerent Parties; (ii) the airspace above the high seas and above territory not subject to the sovereignty of any State; and (iii) the airspace above the contiguous zones or the EEZ of all States (including Neutrals). The concepts of the EEZ and the continental shelf refer to the exploitation of natural resources. For the purposes of air or missile operations, these zones and areas are international waters and the air above them is international airspace. See also Rule 107 (e) and paragraph 3 of the Commentary on Rule 166.
- Art. 43 (3) of AP/I: “Whenever a Party to a conflict incorporates a paramilitary or armed law enforcement agency into its armed forces it shall so notify the other Parties to the conflict.”
(1) (c) “Air or missile combat operations” mean air or missile operations designed to injure, kill, destroy, damage, capture or neutralize targets, the support of such operations, or active defence against them.
[Commentary]
- Air combat operations include attacks by aircraft on other aircraft and on surface targets (on land or at sea).
- Missile combat operations include attacks on aircraft, surface targets (on land or at sea) or on other missiles by missiles from land or sea based platforms, as well as surface-to-surface missile strikes.
- Air or missile combat operations are not confined to those aircraft or missiles conducting an “attack” (see Rule 1 (e)). Air combat operations typically include multiple elements, e.g., refueling; jamming of enemy radars; suppression of enemy defences by attacking enemy radar stations and anti-aircraft artillery or missile sites; use of airborne warning and control systems; bombing; fighter escort and fighter sweeps preceding bomber attacks. Operations integral to ground or naval combat against the enemy, such as dropping an airborne force or using airborne platforms to control attacks on enemy naval vessels, are likewise included in the scope of the term.
- The targets of air or missile combat operations can be persons or objects. Rule 10 (b) explains which targets may lawfully be attacked.
(1) (d) “Aircraft” means any vehicle – whether manned or unmanned − that can derive support in the atmosphere from the reactions of the air (other than the reactions of the air against the earth’s surface), including vehicles with either fixed or rotary wings.
[Commentary]
- As used in this Manual, the term aircraft is used in its broadest sense, extending to airplanes (fixed-wing aircraft), helicopters (rotary-wing aircraft) and even balloons, blimps and dirigibles. The definition of aircraft is not limited in terms of function (e.g., combat, transport, refuelling, etc.), status (e.g., military, civilian, etc.), or size (e.g., from large transport aircraft to small drones). Likewise, the definition of aircraft extends to all unmanned aerial vehicles, whether unarmed (UAV) or armed (UCAV), and whether remotely piloted or operating autonomously.
- Aircraft which are lighter than air, like balloons or blimps, are aerostats. Simply put, aerostats float on the air. A powered, steerable aerostat is a dirigible. By contrast, “heavier-than-air” aircraft are aerodynes. In simplest terms, an aerodyne achieves lift by forcing air downward through contact with the aircraft’s surface, especially a fixed-wing aircraft or a rotary-wing aircraft.
- Aircraft may be unpowered (e.g., a glider), powered by propellers, rocket-powered, or powered by one or more jet engines. Jet engines take in air (usually through a turbine driven compressor), burn it and achieve thrust by expelling the exhaust.
- In that the essence of an aircraft is reaction with the air, missiles do not qualify as aircraft because they, except cruise missiles at the time of cruising, do not derive their support from reaction with the air (see Rule 1 (z)).
(1) (e) “Attack” means an act of violence, whether in offence or in defence.
[Commentary]
- This definition is based on Art. 49 (1) of AP/I.[40] The qualifier “against the adversary,” which appears in Art. 49 (1) of AP/I, is omitted here to avoid confusion. An attack need not be directed against the enemy’s military forces or assets for the Rules reflected in this Manual to apply. Most importantly, an “attack” qualifies as such even if it is directed -– unlawfully –- against civilians, civilian objects or Neutrals (see, inter alia, Rule 11 and Section X). In other words, the term “attack” is employed in Rule 1 (e) only to describe the physical acts which so qualify, without reference to their lawfulness.
- The definition of “attack” is strictly a matter of the law of international armed conflict; it has nothing to do with the jus ad bellum concept of an “armed attack” appearing in Art. 51 of the UN Charter.[41] This means that the Rules of this Manual apply to acts of violence in armed conflict regardless of whether such acts amount to an armed attack against a State in the sense of jus ad bellum.
- The phrase “in defence” is used in its operational sense; it is not meant to refer to the jus ad bellum concept of “self-defence” as used in Art. 51 of the UN Charter.
- As indicated in paragraph 7 of the Commentary on Rule 1 (b), “[a]ttack” does not necessarily imply conduct of an offensive nature against the enemy. That is, offensive and defensive operations are not distinguished from one another. For the purposes of this Manual, an attack is any military act of a violent nature. The term is narrower than the phrase “military operation”, which may consist of one or more attacks, or none at all.
- “Attack”, as defined in Rule 1 (e), does not include intelligence gathering, propaganda, or any other military activities which do not result (or were intended, see the following paragraph) in death, injury, damage or destruction of persons or objects.
- The term “attack” includes both operations that actually result in violent effects, and those which were intended to but failed. For instance, an aircraft which intends to bomb a target but is unsuccessful because its weapon system fails to release due to mechanical failure, has nevertheless conducted an attack. Similarly, enemy defences may effectively foil an attack and therefore an attack may not be completed; an incomplete attack, still counts as an attack.
- The definition of “attacks” also covers “non-kinetic” attacks (i.e. attacks that do not involve the physical transfer of energy, such as certain CNAs; see Rule 1(m)) that result in death, injury, damage or destruction of persons or objects. Admittedly, whether “non-kinetic” operations rise to the level of an “attack” in the context of the law of international armed conflict is a controversial issue. There was agreement among the Group of Experts that the term “attack” does not encompass CNAs that result in an inconvenience (such as temporary denial of internet access).
- Art. 49 (1) of AP/I: “‘Attacks’ means acts of violence against the adversary, whether in offence or in defence.”
- Art. 51 of the UN Charter: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” See also D of the Introduction as regards the exclusion of jus ad bellum issues from the scope of this Manual.
(1) (f) “Belligerent Party” means a State Party to an international armed conflict.
[Commentary]
- For the purposes of this Manual, a “Belligerent Party” is always a State.
- An “international armed conflict” is an armed conflict between two or more States (see Rule 1 (r)).
- For Contracting Parties to AP/I, according to Art. 1 (4) thereof, the phrase international armed conflict includes “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist régimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations”. Hence, Contracting Parties to AP/I, the term “Belligerent Party” extends to an authority representing a people engaged in a conflict of the type dealt with in Art. 1 (4) of AP/I. This is not accepted by non-Contracting Parties to AP/I.
- Armed conflicts between the regular armed forces of a State and opposing non-State organized armed groups, or between non-State organized armed groups, are non-international armed conflicts (see the Commentary on Rule 2 (a), especially paragraphs 5, 6 and 7 thereof).
- International law has not produced a universally-accepted term to refer to States engaged in an international armed conflict. For instance, whereas the 1907 Hague Convention (IV) uses the term “belligerents”, AP/I adopts the phraseology “Party to the conflict”. The semantic distinctions, however, are not substantive in nature. In view of the rather loose use of terms for describing those entities that, under the law of international armed conflict, qualify as Parties to an international armed conflict, the Group of Experts decided to adopt throughout the text of this Manual the expression “Belligerent Party”, and to do so consistently in all contexts.
- All belligerent rights reflected in this Manual are vested in Belligerent Parties as defined here, i.e. States engaged in an international armed conflict.
(1) (g) “Cartel aircraft” means an aircraft granted safe conduct by agreement between the Belligerent Parties for the purpose of performing a specific function, such as the transport of prisoners of war or parlementaires.
[Commentary]
- The term “cartel” means an agreement between Belligerent Parties. Such an agreement is therefore constitutive for the special status of cartel aircraft. The agreement ought to be as specific as possible, spelling out the function which a cartel aircraft is supposed to perform, thus rendering it under certain conditions immune from attack and from capture as prize (for more details, see Section J (II) and Section J (III)).
- In accordance with a well-established State practice in naval warfare, “cartel aircraft” may be commissioned for the carriage of exchanged POWs or for the carriage of “parlementaires”. A “parlementaire” is a person who has been authorized by one of the Belligerent Parties to enter into communication with the enemy.[42]
- It is now generally understood that Belligerent Parties are free to agree on any function a “cartel air-craft” is to serve. The phrase “such as” is used in Rule 1 (g) in light of the current practice whereby Belligerent Parties — in accordance with Art. 109 to Art. 117 of GC/III — have to endeavour to make arrangements for the repatriation or transport to Neutrals of certain categories of wounded and sick POWs. Other examples of functions for which cartel aircraft could be used may include the transportation of civilian detainees or of cultural property.
- Any aircraft, whether designated or defined as military (see Rule 1 (x)), civilian (see Rule 1 (h)), medical (see Rule 1 (u)) or State (see Rule 1 (cc)), may become a “cartel aircraft” by agreement between the Belligerent Parties.
- Cartel aircraft may lose their specific protection from attack in the circumstances set forth in Rule 65. Therefore, it is important that they scrupulously comply with the details of the agreement between the Belligerent Parties, and that they do not act in a manner inconsistent therewith. Moreover, they are subject to inspection by the opposing Belligerent Party, which is entitled to verify whether the “cartel aircraft” is in compliance with the details of the agreement.
- Art. 32 of the 1907 Hague Regulations, see fn. 626.
(1) (h) “Civilian aircraft” means any aircraft other than military or other State aircraft.
[Commentary]
- This definition is based on Art. 3 of the Chicago Convention, although that text refers to “civil air-craft”.[43] The Group of Experts was divided on the correctness of using the adjective “civilian”. A considerable number of members of the Group of Experts would have preferred the use of the adjective “civil” because that is the term used in treaty law and in national military manuals. The majority of the Group of Experts, however, favoured the use of the adjective “civilian” in order to emphasize that such aircraft are civilian objects (see Rule 1 (j)).
- The Chicago Convention, as well as the SRM/ACS[44] and the definitions contained in State national military manuals,[45] all have in common that they are phrased in the negative. Accordingly, civilian aircraft are neither military aircraft nor any other State aircraft. For the definition of State aircraft, see Rule 1 (cc).
- According to Art. 17 of the Chicago Convention, “[a]ircraft have the nationality of the State in which they are registered”. Art. 18 of that same Convention provides that “[a]n aircraft cannot be validly registered in more than one State, but its registration may be changed from one State to another.” Every aircraft engaged in international air navigation must “bear its appropriate nationality and registration marks” (Art. 20 of the Chicago Convention).
- Civilian aircraft, whether of enemy or neutral nationality, are civilian objects and, thus, protected against direct (Rule 11) or indiscriminate (Rule 13) attack unless they are rendered military objectives (see, respectively, Rule 27 and Rule 174). Despite such protection from attack, civilian aircraft -– in the course of an international armed conflict −- are liable to interception and inspection (Section U). Enemy civilian aircraft are liable to capture as prize (Rule 134). Neutral civilian aircraft are liable to capture as prize outside neutral airspace only in the conditions enumerated in Rule 140.
- For more details on the protection of civilian aircraft, see Section I.
- Art. 3 of the Chicago Convention: “(a) This Convention shall be applicable only to civil aircraft, and shall not be applicable to State aircraft. (b) Aircraft used in military, customs and police services shall be deemed to be State air-craft.”
- Para. 13 (l) of the SRM/ACS: “‘Civil aircraft’ means an aircraft other than a military, auxiliary, or State aircraft such as a customs or police aircraft, that is engaged in commercial or private service.”
- Para. 12.6 of the UK Manual: “‘Civil aircraft’ means an aircraft that is not a military, auxiliary, or other State aircraft (such as a customs or police aircraft) and that is engaged in commercial or private service. (Definition adapted from the San Remo Manual).”
Para. 1009 of the German ZDv: “‘Civilian aircraft’ are all aircraft other than military aircraft as described in Section 1007 and State aircraft as described in Section 1008, serving the exclusively civilian transport of passengers or cargo.”
(1) (i) “Civilian airliner” means a civilian aircraft identifiable as such and engaged in carrying civilian passengers in scheduled or non-scheduled service.
[Commentary]
- While no treaty recognizes a separate category of “civilian airliners”[46] the unique standing of civilian airliners is acknowledged in the SRM/ACS[47] and various military manuals (UK Manual[48] and NWP[49]).
- The Group of Experts was divided on whether civilian airliners are a special category benefiting from specific protection beyond that due to the general protection accorded to civilian aircraft. The compromise was to recognize that civilian airliners are entitled to particular care in terms of precautions (see Section J (I) and Section J (III), especially Rule 58).
- Civilian airliners benefit from particular care in terms of precautions in view of their world-wide em-ployment in carrying civilian passengers in international air navigation, and in view of the vast risks to innocent passengers in areas of armed conflict.
- Since “civilian airliners” are but a subcategory of “civilian aircraft”, they must comply with the rules on registration and marking set forth in the Chicago Convention (see paragraph 3 of the Commentary on Rule 1 (h)).
- The phrase “engaged in carrying civilian passengers” means that the civilian passengers must actually be on board the aircraft, whether in flight or while the aircraft is on the ground. Aircraft with no civilian passengers on board are “civilian aircraft”, as dealt with in Rule 1 (h) and in Section I. On the other hand, the mere fact that some passengers are members of the enemy’s armed forces, does not prejudice the status of a civilian airliner. That does not mean that a civilian airliner may never be attacked (see Section J (I) and Section J (III)).
- “Civilian airliners” will usually be identifiable as such because Belligerent Parties, as well as Neutrals, provide regular air traffic services within their respective flight information region (FIR) in accordance with ICAO regulations and procedures. Their status as civilian airliner, however, does not depend on whether the flight in question is scheduled. Similarly, it is immaterial whether the flight takes place along Air Traffic Service-routes. Since the object and purpose of the category of “civilian airliner” is to protect civilian passengers, civilian airliners having strayed from their Air Traffic Service-routes — e.g., in a situation of distress — are still entitled to particular care in terms of precautions.
- The special protection of “civil aircraft” under Art. 3 bis of the Chicago Convention does not apply in situations of armed conflict. Art. 3 bis of the Chicago Convention reads: “(a) The Contracting States recognize that every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered. This provision shall not be interpreted as modifying in any way the rights and obligations of States set forth in the Charter of the United Nations.”
- Para. 13 (m) of the SRM/ACS: “‘Civil airliner’ means a civil aircraft that is clearly marked and engaged in carrying civilian passengers in scheduled or non-scheduled services along Air Traffic Service routes.”
- Para. 12.7 of the UK Manual: “‘Civil airliner’ means a civil aircraft that is clearly marked and engaged in carrying civilian passengers in scheduled or non-scheduled services along air traffic service routes.”
- Para. 8.6.3. of NWP (“Enemy Vessels and Aircraft Exempt from Destruction or Capture”) of NWP at subpara. 6: “Certain classes of enemy vessels and aircraft are exempt under the law of naval warfare from capture or destruction provided they are innocently employed in their exempt category. These specially protected vessels and aircraft must not take part in the hostilities, must not hamper the movement of combatants, must submit to identification and inspection procedures, and may be ordered out of harm’s way. These specifically exempt vessels and aircraft include: … (6) Civilian passenger vessels at sea and civil airliners in flight are subject to capture but are exempt from destruction. Although enemy lines of communication are generally legitimate military targets in modern warfare, civilian passenger vessels at sea, and civil airliners in flight, are exempt from destruction, unless at the time of the encounter they are being utilized by the enemy for a military purpose (e.g., transporting troops or military cargo) or refuse to respond to the directions of the intercepting warship or military aircraft. Such passenger vessels in port and airliners on the ground are not protected from destruction.”
(1) (j) “Civilian objects” mean all objects which are not military objectives, as defined in Rule 1 (y).
[Commentary]
- This definition is based on Art. 52 (1) of AP/I, which defines civilian objects in the negative as “all objects which are not military objectives” as defined in Art. 52 (2) of AP/I.[50] For the definition of military objectives, see Rule 1 (y) and Section E.
- The civilian character of an object can be lost through location, purpose or use. For instance, a moun-tain pass is a civilian object but loses its character once it becomes militarily important by virtue of its location (see Rule 22 (b)). Similarly, a residence is a civilian object, but becomes a military objective if used to billet troops (see Rule 22 (d)). Finally, a civilian ocean liner being fitted for intended future use as a military troop transport qualifies as a military objective by purpose (see Rule 22 (c)).
- Art. 52 (2) of AP/I, see fn. 99.
(1) (k) “Civil defence” means the performance of some or all of the humanitarian tasks men-tioned below, intended to protect the civilian population against the dangers, and to help it to recover from the immediate effects, of hostilities or disasters and also to provide the conditions necessary for its survival. These tasks are: (i) warning; (ii) evacuation; (iii) management of shelters; (iv) management of blackout measures; (v) rescue; (vi) medical services, including first aid, and religious assistance; (vii) fire-fighting; (viii) detection and marking of danger areas; (ix) decontamination and similar protective measures; (x) provision of emergency accommodation and supplies; (xi) emergency assistance in the restoration and maintenance of order in distressed areas; (xii) emergency repair of indispensable public utilities; (xiii) emergency disposal of the dead; (xiv) assistance in the preservation of objects essential for survival; (xv) complementary activities necessary to carry out any of the tasks mentioned above, including, but not limited to, planning and organization.
[Commentary]
- This definition is almost identical to the definition of civil defence in Art. 61 (a) of AP/I. For the substantive provisions applicable to civil defence, see Section N (I).
- In contrast to the broader meaning of “civil defence” which may include non-military measures relating to national defence (measures such as maintaining of law and order, safeguarding the position of public authorities, psychological defence, etc.), “civil defence” as defined in Rule 1(k) is limited to an exhaustive list of fifteen humanitarian activities aiming towards: (a) protecting the civilian population against the effects of hostilities or disasters; (b) helping the civilian population to recover from the immediate effects of hostilities or disasters; and/or (c) providing the conditions necessary for the survival of the civilian population.
- The activities listed in Rule 1 (k) fall under the definition of civil defence and thus are specifically protected only if their exercise is intended to protect the civilian population or civilian objects. The tasks need to be humanitarian and may not be considered as a contribution to the war effort. Fire-fighting, for example, is a protected civil defence activity only when rescuing civilians or when preventing damage to civilian objects. Personnel fire-fighting on a military airfield would generally not be protected under Rule 1 (k). However, if the fire on a military objective endangers the life of civilians or threatens civilian objects in the vicinity, the fire-fighting would be considered as a civil defence activity if it is done in view of protecting these civilians and civilian objects (see also paragraph 6 of the Commentary on Rule 10 (b) (i)).
- Civil defence activities relate to effects of hostilities but also to those of a disaster, whether it be a natural disaster or a disaster caused by technical malfunction (e.g., a gas leak in a chemical plant). However, the law of international armed conflict would apply to civil defence activities performed in the context of a disaster and — totally unrelated to hostilities — only if these activities are performed in the territory of a State involved in an international armed conflict.
(1) (l) “Collateral damage” means incidental loss of civilian life, injury to civilians and damage to civilian objects or other protected objects or a combination thereof, caused by an attack on a lawful target.
[Commentary]
- The concept of collateral damage lies at the heart of the principle of proportionality, which prohibits an attack that may be expected to cause collateral damage which would be excessive in relation to the concrete and direct military advantage anticipated to result from the attack (see Rule 14). The definition is drawn from the principle as set forth in Art. 51 (5) (b) of AP/I,[51] Art. 57 (2) (a) (iii) of AP/I[52] and Art. 57 (2) (b) of AP/I.[53]
- There are two categories of collateral damage referred to in Art. 57 of AP/I. One is that of incidental loss or injury to civilians and the other is that of damage to civilian objects. Strictly speaking, collateral damage relates only to the subcategory of damage to civilian objects. However, as used in this Manual, the term collateral damage extends also to the subcategory of incidental loss — or injury to — civilians.
- Two factors underlie the term. First, the loss / injury or damage must be incidental. For instance, civilians or civilian objects that are intentionally or indiscriminately (and unlawfully — see, respectively, Rule 11 and Rule 13) attacked do not constitute collateral damage. Secondly, the death of, or injury to, combatants or civilians directly participating in hostilities does not constitute collateral damage. Similarly, damage to, or destruction of, military objectives (including civilian objects which have become military objectives through location, purpose or use) does not constitute collateral damage. Combatants, military objectives and civilians directly participating in hostilities are lawful targets (see Rule 10 (b)).
- In the context of the law of international armed conflict, harm to civilians and civilian objects that the attacker did not expect is not collateral damage included in proportionality calculations, so long as the lack of expectation of harm was reasonable in the circumstances (see the Commentary on Rule 14). The key question with regard to such harm is whether there is compliance with the requirement to take feasible precautions in attack (see Section G).
- Collateral damage does not include inconvenience, irritation, stress, fear or other intangible effects on the civilian population.
- Art. 51 (5) (b) of AP/I, see fn. 214.
- Art. 57 (2) (a) (iii) of AP/I, see fn. 285.
- Art. 57 (2) (b) of AP/I, see fn. 285.
(1) (m) “Computer network attack” means operations to manipulate, disrupt, deny, degrade, or destroy information resident in computers and computer networks, or the computer net-work itself, or to gain control over the computer or computer network.
[Commentary]
- Computer network attack (CNA) is a form of “information operations”. In their broad meaning, information operations are defined as “[t]he integrated employment of the core capabilities of electronic warfare, computer network operations, psychological operations, military deception, and operations security, in concert with specified supporting and related capabilities, to influence, disrupt, corrupt or usurp adversarial human and automated decision making while protecting our own.”[54]
- The essence of CNA is that a data stream is relied on to execute the operation against the targeted system. Thus, the means and methods used set CNA apart from other forms of information operations. CNA operations vary widely. They include, for instance, gaining access to a computer system so as to acquire complete or partial control over it; transmitting viruses to destroy or alter data; using logic bombs that sit idle in a system until triggered on the occasion of a particular occurrence or at a set time; inserting worms that reproduce themselves upon entry to a system thereby overloading the network; employing sniffers to monitor and/or seize data; securing entry into a system in order to manipulate data, for instance by altering, deleting, or adding to it, and simply penetrating a system to observe data resident therein.
- A CNA can be directed against an individual computer, specific computers within a network, or an entire computer network.
- The term “attack” in “computer network attack” is not meant to necessarily imply that all such operations constitute an attack as that term is used elsewhere in this Manual (see definition of “attack” as set forth in Rule 1 (e)). Some CNA operations may rise to the level of an attack as defined in Rule 1 (e), whereas others will not (see paragraph 7 of the Commentary on Rule 1 (e)).
- DoD Dictionary of Military Terms, at 260 – 261.
(1) (n) “Contraband” means goods which are ultimately destined for territory under the control of an enemy Belligerent Party and which are susceptible for use in international armed conflict.
[Commentary]
- This definition is based on Para. 148 of the SRM/ACS[55], as well as on Para. 7.4.1. of NWP[56] and on Para. 12.8 of the UK Manual.[57]
- The construct of contraband is only relevant to (i) neutral cargo; and (ii) neutral aircraft. As far as enemy cargo on board enemy aircraft is concerned, it is always susceptible to capture as prize (see Section U (I)).
- Two cumulative elements are necessary for goods to qualify as “contraband”: (i) they must be susceptible for use in international armed conflict; and (ii) they must be ultimately destined for enemy, or enemy controlled, territory.
- In traditional practice, there were two categories of contraband.[58] Absolute contraband referred to goods that, by nature, were obviously destined for use during the hostilities (see Art. 22 of the London Declaration). Conditional contraband, by contrast, were goods that could serve either peaceful or military purposes (see Art. 24 of the London Declaration). Belligerent Parties were entitled to issue contraband lists upon commencement of hostilities, in order to place Neutrals on notice of those goods it considered to be absolute (see Art. 23 of the London Declaration) or conditional (see Art. 25 of the London Declaration) contraband, as well as those expressly considered to not be contraband (“free goods”, see Arts. 27 to 29 of the London Declaration). During WWII and in post-WWII State practice, the traditional distinction between absolute and conditional contraband has eroded. In view of that practice, the Group of Experts decided that this distinction has become obsolete.
- Goods “susceptible for use in international armed conflict”, inter alia, comprise weapons, munitions, all other means of warfare, as well as items destined for use by the enemy’s armed forces, such as weapons, munitions, uniforms, foodstuffs, or fuel. Belligerent Parties may publish contraband lists at the initiation of hostilities to notify Neutrals of the type of goods considered to be contraband, as well as those not considered to be contraband at all. The precise nature of a Belligerent Party’s contraband list may vary according to the circumstances of the conflict[59] because it is impossible to define in advance which goods will be “susceptible for use in international armed conflict”. It is a matter of dispute whether there is an obligation for Belligerent Parties to publish contraband lists. In any event, weapons and munitions qualify as contraband even if they are not included in such a list. Foodstuffs or other supplies essential for the survival of the civilian population, and medical supplies for the civilian population or for the wounded and sick members of the armed forces, may not be declared contraband.[60]
- The second element, i.e. that the goods must be “ultimately destined” for enemy, or enemy controlled, territory has two important implications. The first implication is that the doctrine of continuous voyage applies to all goods lawfully considered contraband. Hence, goods that, according to the cargo documents, are ostensibly bound for neutral territory, qualify as contraband if there are reasonable grounds for assuming that they will be carried from neutral to enemy, or enemy controlled, territory.
- The second implication is that the concept of contraband is not applicable to enemy exports on neutral civilian aircraft. The only lawful method of warfare by which enemy exports on board neutral aircraft (or vessels) may be prevented is, in the view of the majority of the Group of Experts, an aerial (or naval) blockade. For aerial blockade, see Section V.
- Rule 1 (n) is without prejudice to the powers of the UN Security Council under Chapter VII of the UN Charter. Hence, an embargo decided upon by the UN Security Council may apply to goods that are not “susceptible for use in international armed conflict”.
- Para. 148 of the SRM/ACS: “Contraband is defined as goods which are ultimately destined for territory under the control of the enemy and which may be susceptible for use in armed conflict.”
- Para. 7.4.1 of NWP: “Contraband consists of goods destined for the enemy of a belligerent and that may be susceptible to use in armed conflict.”
- Para. 12.8 of the UK Manual: “‘Contraband’ means goods which are ultimately destined for territory under the control of the enemy and which may be susceptible for use in armed conflict.”
- The London Declaration was signed but not ratified. Most of its provisions, however, are regarded as reflective of customary international law. The Declaration is outdated as regards the distinction between absolute and relative contraband.
- Para. 7.4.1 of NWP: “The precise nature of a belligerent’s contraband list may vary according to the circumstances of the conflict.”
- Arts. 27 – 29 of the London Declaration. See, e.g., also subparagraphs (1) and (2) of Para. 7.4.1.1 of NWP (“Exemptions to Contraband — Free Goods”): “Certain goods are exempt from capture as contraband even though destined for enemy territory. Among these items are free goods such as: (1) Articles intended exclusively for the treatment of wounded and sick members of the armed forces and for prevention of disease. (2) Medical and hospital stores, religious objects, clothing, bedding, essential foodstuffs, and means of shelter for the civilian population in general, and women and children in particular, provided there is not serious reason to believe that such goods will be diverted to other purpose, or that a definite military advantage would accrue to the enemy by their substitution for enemy goods that would thereby become available for military purposes.”
(1) (o) “Cultural property” means, irrespective of origin or ownership:
[Commentary]
- Movable or immovable property of great importance to the cultural heritage of every people, such as monuments of architecture, art or history, whether religious or secular; archaeological sites; groups of buildings which, as a whole, are of historical or artistic interest; works of art; manuscripts, books and other objects of artistic, historical or archaeological interest; as well as scientific collections and important collections of books or archives or of reproductions of the property defined above;
[Commentary]
- Buildings whose main and effective purpose is to preserve or exhibit the movable cultural property defined in sub-paragraph (i) such as museums, large libraries and depositories of archives, and refuges intended to shelter, in the event of armed conflict, the movable cultural property defined in sub-paragraph (i);
[Commentary]
- Centres containing a large amount of cultural property as defined in sub-paragraphs (i) and (ii).
[Commentary]
- The substance of this Rule is almost identical to Art. 1 of the 1954 Hague Convention, which offers the most comprehensive definition of cultural property. Most other treaties only refer to components of the definition, such as (i) “buildings dedicated to religion, art, science, or charitable purposes, historic monuments”;[61] (ii) “historic monuments, museums, scientific, artistic, educational and cultural institutions”;[62] or (iii) “historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples”.[63]
- The list of examples contained in (i) and (ii) of Rule 1 (o) is not intended to be exhaustive, as indicated by the term “such as”.
- Art. 27 of the 1907 Hague Regulations: “In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not being used at the time for military purposes. It is the duty of the besieged to indicate the presence of such buildings or places by distinctive and visible signs, which shall be notified to the enemy beforehand.”
- Art. 1 of the Roerich Pact: “The historic monuments, museums, scientific, artistic, educational and cultural in-stitutions shall be considered as neutral and as such respected and protected by belligerents. The same respect and protection shall be due to the personnel of the institutions mentioned above. The same respect and protection shall be accorded to the historic monuments, museums, scientific, artistic, educational and cultural institutions in time of peace as well as in war.”
- Art. 53 (a) of AP/I: “Without prejudice to the provisions of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954, and of other relevant international instruments, it is prohibited: (a) to commit any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples.”
- The definition of Rule 1 (o) (i) covers all cultural property of great importance to the cultural heritage of every people. The phrase “the cultural heritage of every people” in the 1954 Hague Convention has led to differing interpretations. One line of approach is that the phrase refers to the cultural heritage of all peoples jointly, whereas another school of thought adheres to the view that the cultural heritage of each people (severally) must be respected.
- Cultural property may be movable or immovable; religious or secular. The definition also covers buildings and centres containing such cultural property.
- This part of the definition relates to museums, libraries and archives. What counts here is not the nature of the buildings as such (which may have no historical or “artistic” interest, as per Rule 1 (o) (i)), but relates to the movable cultural property which is preserved in these buildings.
- Centres containing a large amount of cultural property may consist of entire towns (like Venice or Bruges) that encompass cultural property. The definition extends even to those parts of the town which do not qualify per se as cultural property under Rule 1 (o) (i) and Rule 1 (o) (ii).
(1) (p) “Electronic warfare” means any military action involving the use of electromagnetic and directed energy to control the electromagnetic spectrum or to attack the enemy.
[Commentary]
- Electronic warfare (EW) is currently used extensively as a method of warfare. Yet, it is not specifically regulated or even mentioned in treaty law.
- The use of “electromagnetic, directed energy, or anti-radiation weapons to attack personnel, facilities, or equipment with the intent of degrading, neutralizing, or destroying enemy combat capabilities” or to “preven[t] or reduc[e] an enemy’s use of the electromagnetic spectrum”[64] constitutes electronic attack, the form of EW most relevant to this Manual.
- Electromagnetic jamming and Suppression of Enemy Air Defences (SEAD) are common forms of electronic attack. In the former, electromagnetic energy is radiated, reradiated, or reflected in order to impede the enemy’s use of the electromagnetic spectrum. Typical targets include radar controlled weapons, intelligence networks, and command and control systems. SEAD comprises aerial operations that neutralize, destroy, or temporarily degrade elements of the enemy’s ground-based integrated air defence system. These include early warning, ground-control intercept, and target acquisition radars; surface to air missiles; and anti-aircraft artillery. Many SEAD missions are performed using anti-radiation missiles that home in on energy emitted by the target.[65]
- Although not deployed in the general inventory of any State’s armed forces, a number of States have, or have had, research programs on electromagnetic bombs. Reports exist of limited use on the battlefield. An electromagnetic bomb disrupts and disables electronics by creating an electromagnetic pulse (EMP) upon detonation that causes current and voltage surges. Integrated circuits, transistors, inductors, and electronic motors are especially vulnerable to the effects of EMP.
- As used in this Manual, EW encompasses all actions conducted against the enemy in the context of an international armed conflict, whether by the armed forces or even by non-military forces such as intelligence agencies. By contrast, EW unrelated to the armed conflict, such as that employed for strictly law-enforcement purposes, is not covered by this Manual.
- United States Air Force, Electronic Warfare, Air Force Doctrine Document (AFDD) 2-5.1, 5 November 5, 2002, at page 7. Directed energy refers to technologies involving the creation of beams of electromagnetic energy or atomic or subatomic parts.
- Ibid., at page 8.
(1) (q) “Feasible” means that which is practicable or practically possible, taking into account all circumstances prevailing at the time, including humanitarian and military considerations.
[Commentary]
- This definition is based upon declarations made by States at the time of ratification of AP/I, where the concept “feasible” appears, e.g., in Arts. 41, 56, 57, 58, 78 and 86. A similar definition is given in the second sentence of Art. 3 (10) of the 1996 Amended Protocol II to the CCW.”[66]
- The term “feasible” appears in several Rules of this Manual and could have different practical meaning when the context is different. For instance, with regard to verification as to whether an aircraft in the air constitutes a military objective (see Rule 40), what is feasible may depend on the availability of technical means for observation and detection. This is supported by the ICRC Commentary on AP/I.[67] With regard to the removal of the civilian population from the vicinity of military objectives (see Rule 43), the feasibility may depend on the availability of means of transportation and alternative housing.
- The feasibility of a particular course of action will depend on which information or which means are in fact available to military commanders at the relevant time and place. The mere fact that such information or such means exist somewhere is irrelevant for determining feasibility. Thus, Austria, when ratifying AP/I declared that Art. 57 (2) of AP/I “will be applied on the understanding that, with respect to any decision taken by a military commander, the information actually available at the time of the decision is determinative.”
- The term “at the time” is to emphasize that any judgment on feasibility is to be taken at the time in which attacks are decided upon or executed. This is a clear rejection of any hindsight analysis. For instance, Australia (among others), upon ratification of AP/I, in relation to Arts. 51–58 thereof, declared that “military commanders and others responsible for planning, deciding upon or executing attacks, necessarily have to reach their decisions on the basis of their assessment of the information from all sources, which is available to them at the relevant time.” In other words, options that become apparent after the battle has been fought are not relevant if they were not apparent at the critical moment. See also paragraph 8 of the Commentary on Rule 12 (a) and paragraph 5 of the Commentary on Rule 14.
- As made clear in the last part of this definition, feasibility is to be determined by taking into account both humanitarian and military considerations. Military commanders may, therefore, take into account the circumstances relevant to the success of an attack or of the overall military operation, including the survival of military aircraft and their crews. However, the factoring in of such military considerations may not result in a neglect of humanitarian obligations under the law of international armed conflict. This means that, whereas a particular course of action may be considered non-feasible due to military considerations (such as excessive risks to aircraft and their crews), some risks have to be accepted in light of humanitarian considerations.
- In the final analysis, the determination of feasibility under the law of international armed conflict remains “a matter of common sense and good faith”.[68] There are currently no absolute standards applicable to any judgment on feasibility.
- Art. 3 of the 1996 Amended Protocol II to the CCW: “(10) All feasible precautions shall be taken to protect civilians from the effects of weapons to which this Article applies. Feasible precautions are those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations. These circumstances include, but are not limited to: (a) the short- and long-term effects of mines upon the local civilian population for the duration of the minefield; (b) possible measures to protect the civilians (for example, fencing, signs, warning and monitoring); (c) the availability and feasibility of using alternatives; and (d) the short- and long-term military requirements for a minefield.”
- Para. 2198 and Para. 2199 of the ICRC Commentary on AP/I pertaining to the use of the words “everything feasible” in Art. 57 (2) (a) (i) of AP/I.
- Ibid., Para. 2198.
(1) (r) “International armed conflict” means an armed conflict between two or more States.
[Commentary]
- In the past, treaties such as the 1899 and 1907 Hague Conventions, used the term “war”. More recently, the common phrase is “international armed conflict”. A prime example is AP/I. The main reason for the use of the phrase “international armed conflict” is that its meaning is wider, and includes not only “wars” (whether or not declared), but also situations “short of war”. What counts is that two or more States are engaged in hostilities with each other. The law of international armed conflict will then apply irrespective of the appellation “war”.
- It is not necessary that the use of armed force by one State meets with the armed resistance by the other State. Neither does the existence of an international armed conflict depend upon the duration or the intensity of the hostilities.
- According to the second paragraph of common Art. 2 of the 1949 Geneva Conventions, these treaties “shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.” For instance, during WWII, German forces were met with no opposition when they invaded Denmark.
- The degree of involvement of a foreign State with an insurgent armed group — triggering an armed conflict with the central government — is controversial. The ICJ[69] and ICTY[70] have taken different positions on the subject. Conversely, the armed conflict will not lose its non-international character if foreign armed forces, at the request of the government engaged in a non-international armed conflict, assist the government forces.
- An international armed conflict may take place side by side with a non-international armed conflict (e.g., Afghanistan in 2001). This, however, does not mean that the international and the non-international armed conflict necessarily merge. Moreover, an armed conflict may commence as a non-international armed conflict but may evolve into an international armed conflict (e.g., the armed conflict in Bosnia-Herzegovina after Bosnia’s independence in 1992).
- Whether an international armed conflict has come into existence is a question of fact. Hence, the existence of such a conflict is not conditioned on any formal recognition of either (i) a “state of war”; or of (ii) the enemy as a “State”; or of (iii) the enemy as a “government”.
- ICJ, Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, in ICJ Reports 1986, p. 14, at para. 115: “… United States participation, even if preponderant or decisive, in the financing, organizing, training, supplying and equipping of the contras, the selection of its military or paramilitary targets, and the planning of the whole of its operation, is still insufficient in itself, … , for the purpose of attributing to the United States the acts committed by the contras in the course of their military or paramilitary operations in Nicaragua. All the forms of United States participation mentioned above, and even the general control by the respondent State over a force with a high degree or dependency on it, would not in themselves mean, without further evidence, that the United States directed or enforced the perpetration of the acts contrary to human rights and humanitarian law alleged by the applicant State. Such acts could well be committed by members of the contras without the control of the United States. For this conduct to give rise to legal responsibility of the United States, it would in principle have to be proved that that State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.” (underlining added) The ICJ confirmed this jurisprudence (explicitly referring to, and rejecting, the ICTY standard as quoted in the following footnote) in ICJ, Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide, Bosnia and Herzegovina v. Serbia and Montenegro, Judgment of 26 February 2007, in paras. 396–415.
- ICTY, Prosecutor v. Dusko Tadic, Case No. IT-94-1-A, Judgement of the Appeals Chamber of 15 July 1999, at para. 145: “In the light of the above discussion, the following conclusion may be safely reached. In the case at issue, given that the Bosnian Serb armed forces constituted a “military organization”, the control of the FRY authorities over these armed forces required by international law for considering the armed conflict to be international was overall control going beyond the mere financing and equipping of such forces and involving also participation in the planning and supervision of military operations. By contrast, international rules do not require that such control should extend to the issuance of specific orders or instructions relating to single military actions, whether or not such actions were contrary to international humanitarian law.” (underlining added)
(1) (s) “Law of international armed conflict” means all the principles and rules of treaty and customary international law binding on a State and governing armed conflict between States; the term “law of international armed conflict” is synonymous with “international humanitarian law relating to international armed conflict”.
[Commentary]
- The law of international armed conflict applies to all situations of international armed conflict as de-fined in Rule 1 (r). The law of international armed conflict must be clearly distinguished from the law regulating the legality of the resort to armed force by States (“jus ad bellum”).
- As far as the law of international armed conflict is concerned, it was common in the past to distinguish between “Hague law” (the law governing the conduct of hostilities) and “Geneva law” (the law aimed at the protection of victims of armed conflict). Today, there is general agreement that “these two branches of the law applicable in armed conflict have become so closely interrelated that they are considered to have gradually formed one single complex system, known today as international humanitarian law”.[71]
- Different terms are used to describe the law of international armed conflict, such as “international humanitarian law”, “jus in bello”, “law of war”, “law of armed conflict”. The Group of Experts was, however, in agreement that this is a semantic rather than a substantive issue. Therefore, they agreed to use both terms synonymously. However, in order to clearly distinguish between international and non-international armed conflicts it was decided to use the terms “law of international armed conflict’ and “international humanitarian law relating to international armed conflict”.
- While treaties are binding only upon Contracting Parties, customary international law is binding on all States, except for those States that — from the very outset of the evolution of a specific customary rule — qualify as persistent objectors.
- ICJ, Nuclear Weapons Advisory Opinion, at page 256.
