Rule 43. The general principles on the conduct of hostilities apply to the natural environment:

1. A. No part of the natural environment may be attacked, unless it is a military objective.

2. B. Destruction of any part of the natural environment is prohibited, unless required by imperative military necessity.

3. C. Launching an attack against a military objective which may be expected to cause incidental damage to the environment which would be excessive in relation to the concrete and direct military advantage anticipated is prohibited.

Practice

Volume II, Chapter 14, Section A.

Summary

State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.

Principle of distinction

The rule that it is prohibited to attack any part of the natural environment unless it is a military objective is based on the general requirement that a distinction be made between military objectives and civilian objects (see Rule 7). This rule is reflected in Protocol III to the Convention on Certain Conventional Weapons, which provides that “it is prohibited to make forests or other kinds of plant cover the object of attack by incendiary weapons except when such natural elements are used to cover, conceal or camouflage combatants or other military objectives, or are themselves military objectives”. The military manuals and official statements which consider that an area of land may be a military objective if it meets the required conditions also reflect this.

Rule 35. Directing an attack against a zone established to shelter the wounded, the sick and civilians from the effects of hostilities is prohibited.

Practice

Volume II, Chapter 11, Section A.

Summary

State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.

International and non-international armed conflicts

The First and Fourth Geneva Conventions provide for the possibility of setting up hospital and safety zones, and a draft agreement for the establishment of such zones is attached thereto. In addition, the Fourth Geneva Convention provides for the possibility of setting up neutralised zones. Both types of zone are intended to shelter the wounded, the sick and civilians from the effects of conflict, but the hospital and safety zones are meant to be far removed from military operations, whereas neutralised zones are intended for areas in which military operations are taking place.

The relevant provisions of the Geneva Conventions are incorporated in many military manuals, which emphasise that these zones must be respected. Under the legislation of several States, it is an offence to attack such zones.

In a resolution adopted in 1970 on basic principles for the protection of civilian populations in armed conflicts, the UN General Assembly stated that “places or areas designated for the sole protection of civilians, such as hospital zones or similar refuges, should not be the object of military operations”.

Rule 109. Whenever circumstances permit, and particularly after an engagement, each party to the conflict must, without delay, take all possible measures to search for, collect and evacuate the wounded, sick and shipwrecked without adverse distinction.

Practice

Volume II, Chapter 34, Section A.

Summary

State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.

International armed conflicts

The duty to collect wounded and sick combatants without distinction in international armed conflicts was first codified in the 1864 Geneva Convention. This subject is dealt with in more detail in the 1949 Geneva Conventions. This duty is now codified in Article 10 of Additional Protocol I, albeit in more general terms of “protecting” the wounded, sick and shipwrecked, which means “coming to their defence, lending help and support”.

The numerous military manuals which contain this rule are phrased in general terms covering all wounded, sick and shipwrecked, whether military or civilian. Sweden's IHL Manual, in particular, identifies Article 10 of Additional Protocol I as a codification of customary international law. The legislation of many States provides for the punishment of persons who abandon the wounded, sick and shipwrecked.

Non-international armed conflicts

In the context of non-international armed conflicts, this rule is based on common Article 3 of the Geneva Conventions, which provides that “the wounded and sick shall be collected”.

Note: This chapter addresses forced displacement of civilians for reasons related to an armed conflict, whether within or outside the bounds of national territory. It thus covers the treatment of both internally displaced persons and persons who have crossed an international border (refugees). The only exception to this is Rule 130, which covers both forcible and non-forcible transfer of populations into occupied territory.

Rule 129.

1. A. Parties to an international armed conflict may not deport or forcibly transfer the civilian population of an occupied territory, in whole or in part, unless the security of the civilians involved or imperative military reasons so demand.

2. B. Parties to a non-international armed conflict may not order the displacement of the civilian population, in whole or in part, for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand.

Practice

Volume II, Chapter 38, Section A.

Summary

State practice establishes these rules as norms of customary international law applicable in international (A) and non-international (B) armed conflicts respectively.

International armed conflicts

The prohibition of the deportation or transfer of civilians goes back to the Lieber Code, which provides that “private citizens are no longer … carried off to distant parts”. Under the Charter of the International Military Tribunal (Nuremberg), “deportation to slave labour or for any other purpose of civilian population of or in occupied territory” constitutes a war crime. The prohibition of the transfer or deportation of civilians is set forth in the Fourth Geneva Convention.

Rule 15. In the conduct of military operations, constant care must be taken to spare the civilian population, civilians and civilian objects. All feasible precautions must be taken to avoid, and in any event to minimise, incidental loss of civilian life, injury to civilians and damage to civilian objects.

Practice

Volume II, Chapter 5, Section A.

Summary

State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. The two components of this rule are interrelated and the practice pertaining to each reinforces the validity of the other. This is a basic rule to which more content is given by the specific obligations contained in Rules 16–21. The practice collected in terms of those specific obligations is also relevant to prove the existence of this rule and vice versa.

International armed conflicts

The principle of precautions in attack was first set out in Article 2(3) of the 1907 Hague Convention (IX), which provides that if for military reasons immediate action against naval or military objectives located within an undefended town or port is necessary, and no delay can be allowed the enemy, the commander of a naval force “shall take all due measures in order that the town may suffer as little harm as possible”. It is now more clearly codified in Article 57(1) of Additional Protocol I, to which no reservations have been made.

Rule 34. Civilian journalists engaged in professional missions in areas of armed conflict must be respected and protected as long as they are not taking a direct part in hostilities.

Practice

Volume II, Chapter 10.

Summary

State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.

International armed conflicts

The protection of civilian journalists is set forth in Article 79 of Additional Protocol I, to which no reservations have been made.

This rule is set forth in numerous military manuals. It is also supported by official statements and reported practice. This practice includes that of States not party to Additional Protocol I.

Non-international armed conflicts

Although Additional Protocol II does not contain any specific provision on civilian journalists, their immunity against attack is based on the prohibition on attacking civilians unless and for such time as they take a direct part in hostilities (see Rule 6). This conclusion is borne out by practice, even before the adoption of the Additional Protocols. Brazil in 1971 and the Federal Republic of Germany in 1973 stated before the Third Committee of the UN General Assembly that journalists were protected as civilians under the principle of distinction. The UN Commission on the Truth for El Salvador considered the murder of four Dutch journalists, accompanied by members of the FMLN, who were ambushed by a patrol of the Salvadoran armed forces, to be in violation of international humanitarian law, “which stipulates that civilians shall not be the object of attacks”.

Rule 80. The use of booby-traps which are in any way attached to or associated with objects or persons entitled to special protection under international humanitarian law or with objects that are likely to attract civilians is prohibited.

Practice

Volume II, Chapter 28.

Summary

State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.

International armed conflicts

Both treaty practice and other State practice support the premise that booby-traps are prohibited if, by their nature or employment, their use violates the legal protection accorded to a protected person or object by another customary rule of international humanitarian law. This is the reasoning behind the list of booby-traps prohibited in Protocol II and Amended Protocol II to the Convention on Certain Conventional Weapons.

The list of booby-traps prohibited by Protocol II and Amended Protocol II to the Convention on Certain Conventional Weapons is found in the military manuals and legislation of some States party to these treaties. Other military manuals are more general in their description and stress that booby-traps associated with objects in normal civilian daily use are prohibited, and that booby-traps must not be used in association with protected persons, protected objects (such as medical supplies, gravesites and cultural or religious property) or internationally recognised protective emblems or signs (such as the red cross and red crescent).

International humanitarian law has its origins in the customary practices of armies as they developed over the ages and on all continents. The “laws and customs of war”, as this branch of international law has traditionally been called, was not applied by all armies, and not necessarily vis-à-vis all enemies, nor were all the rules the same. However, the pattern that could typically be found was restraint of behaviour vis-à-vis combatants and civilians, primarily based on the concept of the soldier's honour. The content of the rules generally included the prohibition of behaviour that was considered unnecessarily cruel or dishonourable, and was not only developed by the armies themselves, but was also influenced by the writings of religious leaders.

The most significant landmark from the point of view of cataloguing these customs in one document was the drafting by Professor Francis Lieber of the Instructions for the Government of Armies of the United States in the Field, promulgated as General Order No. 100 by President Lincoln in 1863 during the American Civil War. The Lieber Code, as it is now known, strongly influenced the further codification of the laws and customs of war and the adoption of similar regulations by other States. Together, they formed the basis of the draft of an international convention on the laws and customs of war presented to the Brussels Conference in 1874.

Note: The implications of being recognised as a combatant in an international armed conflict are significant, as only combatants have the right to participate directly in hostilities (for a definition of combatants, see Rule 3). Upon capture, combatants entitled to prisoner-of-war status may neither be tried for their participation in the hostilities nor for acts that do not violate international humanitarian law. This is a long-standing rule of customary international humanitarian law. Treatment due to prisoners of war is spelled out in detail in the Third Geneva Convention.

Rule 106. Combatants must distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. If they fail to do so, they do not have the right to prisoner-of-war status.

Practice

Volume II, Chapter 33, Section A.

Summary

State practice establishes this rule as a norm of customary international law applicable in international armed conflicts.

International armed conflicts

The requirement that combatants distinguish themselves from the civilian population is a long-standing rule of customary international law already recognised in the Brussels Declaration, the Oxford Manual and the Hague Regulations. It was subsequently codified in the Third Geneva Convention and Additional Protocol I.

Numerous military manuals specify that combatants must distinguish themselves from the civilian population. This includes the manuals of States not, or not at the time, party to Additional Protocol I. This obligation is also supported by a number of official statements and other practice.

Rule 11. Indiscriminate attacks are prohibited.

Practice

Volume II, Chapter 3, Section A.

Summary

State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.

International armed conflicts

The prohibition of indiscriminate attacks is set forth in Article 51(4) of Additional Protocol I. At the Diplomatic Conference leading to the adoption of the Additional Protocols, France voted against Article 51 because it deemed that paragraph 4 by its “very complexity would seriously hamper the conduct of defensive military operations against an invader and prejudice the inherent right of legitimate defence recognized in Article 51 of the Charter of the United Nations”. Upon ratification of Additional Protocol I, however, France did not enter a reservation with respect to the prohibition of indiscriminate attacks. At the Diplomatic Conference leading to the adoption of the Additional Protocols, Mexico stated that Article 51 was so essential that it “cannot be the subject of any reservations whatsoever since these would be inconsistent with the aim and purpose of Protocol I and undermine its basis”. The prohibition of indiscriminate attacks is also contained in Protocol II and Amended Protocol II to the Convention on Certain Conventional Weapons.

A large number of military manuals specify that indiscriminate attacks are prohibited. Numerous States have adopted legislation making it an offence to carry out such attacks. The prohibition is supported by official statements and reported practice.