Section B: General Framework

Rule 2

(a) The objective of this Manual is to produce a restatement of existing law applicable to air or missile operations in international armed conflict. This is without prejudice to the possible application of some of the Rules in this Manual to non-international armed conflicts (for details, see the Commentary).

[Commentary]

(b) Nothing in this Manual affects existing obligations of States under treaties to which they are Contracting Parties.

[Commentary]

(c) In cases not covered by this Manual, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.

[Commentary]

  1. This Manual is intended to be a restatement of existing international law applicable to air and missile warfare. The Rules incorporated in this Manual are drawn from treaties and customary international law. This Manual and the Rules incorporated in it do not by themselves create or develop legal obligations. Additionally, this Manual does not purport to reflect the entire spectrum of existing obligations that each State has to comply with pursuant to treaties to which it is a Contracting Party — subject to any reservations, understandings and declarations made — and to customary international law.

  2. The reference in the text to “existing law” is intended to convey the message that this Manual is a restatement of the lex lata. No attempt has been made to introduce into the existing law innovations — desirable as they may appear to be — based on lex ferenda.

  3. The term “applicable” — as it appears here and in other Rules of this Manual (as well as the semantic derivatives “applies” etc.) — is of course linked to the existing law. It is not this Manual per se that is applicable to States but the existing law reflected in the Rules.

  4. The range of application of the Rules of this Manual is restricted to international armed conflicts, i.e. whenever there is resort to armed force between two or more States (see Rule 1 (r)). Yet, as explained in part E of the Introduction, this Commentary will indicate — on a Section-by-Section or Rule-by-Rule basis — whether the same or similar Rules are also applicable in non-international armed conflicts.

  5. Non-international armed conflicts are armed confrontations occurring between governmental armed forces and the armed forces of one or more non-State organized armed groups, or between such groups, arising within the territory of a State. The armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organization. While a conflict of a non-international character may spill over to the territory of another State, this does not alter its legal qualification.

  6. Non-international armed conflicts are governed by Common Art. 3 of the 1949 Geneva Conventions[118] and by AP/II. Various other treaties also relate in part to such conflicts, and there is a growing body of customary international law related to them.

  7. Non-international armed conflicts require a certain threshold, which differs in Common Art. 3 to the Geneva Conventions (referring merely to an “armed conflict not of an international character”) and in Art. 1 (1) of AP/II (referring to an armed conflict between the armed forces of a State and “dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol”).

  8. As will be shown in various parts of the Commentary on this Manual, many of its Rules apply to any armed conflict above the threshold mentioned in the previous paragraph, regardless of whether it is international or non-international in character. However, below the threshold required for applying the law of non-international armed conflict, violence within a State — i.e., internal disturbances and tensions, such as the occurrence of riots and the taking of forcible means to control them — is a matter for law-enforcement, and is not subject to the application of this Manual. This is in keeping with Art. 1 (2) of AP/II.[119]

  9. This Manual deals exclusively with armed conflicts. It follows that its prohibitions of certain weapons — as listed in Section C — are inapplicable to riot control situations. A prime example is the use of tear gas, unlawful in hostilities — when used as a method of warfare — but not banned in the course of riot control. See also paragraph 4 of the Commentary on Rule 1 (v) and paragraph 4 of the Commentary on Rule 6 (b).

  10. Should a foreign State intervene militarily in a non-international armed conflict, it is necessary to dis-tinguish between two opposing scenarios. If the military intervention by the foreign State is at the request and on behalf of the central government, the armed conflict remains non-international. Conversely, if the military intervention by the foreign State is against the central government, the legal situation is trans-formed. The armed conflict that develops between the two governments is international in character. All the same, this does not necessarily affect the non-international armed conflict (between the central government and any non-State organized armed group), which may continue to exist as before. See the Commentary on Rule 1 (r).

  11. When a single State (like the former Yugoslavia) dissolves into several sovereign States, this may de-note that a hitherto non-international armed conflict between several components of the mother country becomes — practically overnight — an inter-State armed conflict between the newly established States. While the transition is easy to explain in legal terms, it is liable to create many problems on the ground (as attested in the Tadić case of the ICTY, where the majority of the Trial Chamber took one position as regards the nature of the armed conflict in the former Yugoslavia and the Appeals Chamber[120] overruled it).

    1. Art. 3 common to the Geneva Conventions: “In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for.

      An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.”

    2. Art. 1 (2) of AP/II: “This Protocol shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.”

    3. ICTY, Prosecutor v. Dusko Tadic, Judgment, Appeals Chamber, 15 July 1999, IT-94-1-A, Para. 84: “It is indisputable that an armed conflict is international if it takes place between two or more States. In addition, in case of an internal armed conflict breaking out on the territory of a State, it may become international (or, depending upon the circumstances, be international in character alongside an internal armed conflict) if (i) another State intervenes in that conflict through its troops, or alternatively if (ii) some of the participants in the internal armed conflict act on behalf of that other State.”

  1. This Manual seeks to reflect existing international law applicable to air and missile warfare, insofar as it is binding on all States. The Rules expressed in this Manual are of general applicability in all international armed conflicts.

  2. If a treaty is universal in its scope of application (that is, every single State is a Contracting Party), its provisions will bind the entire international community. Still, at the present time, the only treaties that are truly universal are the 1949 Geneva Conventions. As far as other treaties are concerned, they create legal regimes applicable only among Contracting Parties. Within these regimes, States may assume treaty obligations that go beyond the confines of the customary law governing the rest of the international community, as reflected in this Manual.

  3. Many provisions of non-universal treaties may, however, codify or generate customary international law. To the extent that such is the case, the treaty per se will still be binding only on Contracting Parties, but the substance of the provisions declaratory of customary international law will be considered as an expression of general law.

  1. The text of this Rule is based on the famous “Martens Clause” (named after the Russian diplomat who initiated its adoption in the 1899 and 1907 Hague Regulations[121]). For recent expressions of the “Martens Clause”, see Art. 1 (2) of AP/I,[122] as well as in the fifth paragraph of the Preamble to the CCW.[123] The Martens Clause has equally been mentioned in the ICJ Nuclear Weapons Advisory Opinion[124] and by the ICTY.[125]

  2. The value added by the phrase “principles of humanity and from the dictates of public conscience” is not entirely clear in practice. The fulcrum of Rule 2 (c) is the reference to customary international law. Every codification of the law — whether binding or non-binding (like the present Manual) — is finite in its scope, and there can be no pretence to cover every aspect and dimension of the law of international armed conflict. Should a problem not covered by this Manual arise, the matter may be settled by custom as it exists beyond the framework reflected of the text.

  3. Moreover, this Manual intends to reflect customary international law as it exists at the moment of its publication (2010). While written texts are theoretically frozen, the practice of States continues to evolve. The growth of customary international law never stops, and custom that may be discovered in the years ahead may fill any gap in the law reflected in the Manual.

  4. The same principle applies in non-international armed conflicts. See the fourth paragraph of the Preamble to AP/II.[126]

    1. Eighth paragraph of the Preamble to the 1907 Hague Regulations: “Until a more complete code of the laws of war has been issued, the high contracting parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.” The 1899 Hague Regulations, Preamble, para. 8, is identical.

    2. Art. 1 (2) of AP/I: “In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.”

    3. Fifth paragraph of the Preamble to the CCW: “Confirming their determination that in cases not covered by this Convention and its annexed Protocols or by other international agreements, the civilian population and the combatants shall at all times remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.”

    4. ICJ, Nuclear Weapons Advisory Opinion: After referring to the “cardinal principles in the texts constituting the fabric of humanitarian law”, the Court stated as follows (at 257): “The Court would likewise refer, in relation to these principles, to the Martens Clause, which was first included in the Hague Convention II with Respect to the Laws and Customs of War on Land of 1899 and which has proved to be an effective means of addressing the rapid evolution of military technology. A modern version of that clause is to be found in Article 1, paragraph 2, of Additional Protocol I of 1977.”

    5. As an example of the ICTY case law, one can refer to Prosecutor v. Zoran Kupreski et al., Trial Chamber, Judgment, IT-95-16-T, 14 January 2000, paras. 525 to 527.

    6. Fourth paragraph of the Preamble to AP/II: “Recalling that, in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience.”

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Rule 3

(a) Subject to binding decisions adopted by the Security Council under Chapter VII of the Charter of the United Nations, the Rules reflected in this Manual also apply to all air or missile operations conducted by United Nations forces when in situations of armed conflict they are engaged therein as combatants, to the extent and for the duration of their engagement.

[Commentary]

(b) The Rules reflected in this Manual also apply to armed conflicts involving any other international governmental organization, global or regional.

[Commentary]

  1. It used to be debated whether UN forces — tasked (deliberately) with, or embroiled (by circumstance) in, combat missions in situations of armed conflict — can be subject to the application of the law of international armed conflict (to the extent and for the duration of their engagement).
  2. This question has now been resolved: irrefutably, the answer is in the affirmative. Any doubts that may have existed with respect to this issue have been put to rest in a landmark 1999 UN Secretary General’s Bulletin.[127]
  3. Rule 3 (a) reflects a basic jus in bello principle as regards the equal application of the law between Belligerent Parties, regardless of their respective standing under the jus ad bellum.
  4. The scope of applicability of the law of international armed conflict to UN forces is dependent on two conditions: (i) there must exist an international armed conflict in which the UN forces are engaged as combatants; and (ii) there is no binding Security Council decision — adopted under Chapter VII of the UN Charter — which lays down mandatory rules to the contrary on specific matters.
  5. Some members of the Group of Experts were of the view that the UN Security Council does not have the right to adopt a binding decision which would override any rule of the law of international armed conflict. However, the prevailing opinion among the members of the Group of Experts was that, in view of the combined effect of Art. 25[128] and Art. 103 of the UN Charter,[129] the UN Security Council has the authority to do so. Of course, the UN Security Council is not expected to use that authority lightly. There is also an unresolved issue as to whether the UN Security Council has the power to override peremptory norms of international law (“jus cogens”).
  6. In any event, any binding Security Council decision diverging from the law of international armed conflict will have to be explicit and specific. Moreover, it can only apply to UN forces whose military operations are mandated (rather than merely “authorized”) by the UN Security Council and where the troops are subject to direct UN command.
  7. Rule 3 (a) applies also if the UN force is engaged in combat operations in a non-international armed conflict.
  8. By itself, the mere fact that a UN force operates in a particular country does not turn a non-international armed conflict into an international armed conflict.
    1. Secretary General’s Bulletin: Observance by United Nations Forces of International Humanitarian Law, 6 August 1999, UN Doc. ST/SGB/1999/13, in 38 I.L.M. 1656.
    2. Art. 25 of the UN Charter: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”
    3. Art. 103 of the UN Charter: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”

  1. In recent years, international governmental organizations other than the UN (primarily NATO) have become engaged in combat in international armed conflicts. Plainly, the law of international armed conflicts applies to forces of such organizations as well.
  2. Of course, all military forces engaged in an armed conflict operating under the banner of an international governmental organization consist of national contingents, and these are bound by the obligations imposed on their respective State by the law of international armed conflict (whether customary law or treaty law). No organ of any international governmental organization (other than the UN Security Council) has the power to detract from these obligations in any way.
  3. For combined operations, see Section W.
  4. Rule 3 (b) applies also if the international governmental organization’s force is engaged in combat in a non-international armed conflict.
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Rule 4

The fundamental principle is that, in any armed conflict, the right of the Belligerent Parties to choose methods or means of warfare is not unlimited.

[Commentary]

  1. This basic Rule is based on Art. 22 of the 1907 Hague Regulations[130] and on Art. 35 (1) of AP/I.[131] All the Rules in this Manual lead back to this fundamental principle.

  2. The main direct consequence of Rule 4 is the fundamental principle that military necessity does not justify any exception from any Rule in the Manual, unless such an exception is expressly stated in the Rule (see, e.g., Rule 95 (b)).

  3. There is no difference in this respect between international and non-international armed conflict.

    1. Art. 22 of the 1907 Hague Regulations: “The right of belligerents to adopt means of injuring the enemy is not unlimited.” Wording identical in the 1899 Hague Regulations.

    2. Art. 35 (1) of AP/I: “In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.”

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