Prisoners of war and the proportionality assessment under IHL

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Prisoners of war

and the proportionality assessment

under international humanitarian law

By Chantal de Jong

July

18

Master track Public International Law Supervisor Jeroen van den Boogaard Date 10 July 2018

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Abstract

The proportionality assessment under international humanitarian law (IHL) consists of two rules: the precautions rule and the proportionality rule, laid down in Article 51 and 57 of Additional Protocol I (AP I) respectively. The former entails the obligation to take feasible precautions to minimize the expected collateral damage of an attack. The latter prohibits the launching of an attack if the expected collateral damage is excessive in relation to the anticipated concrete and direct military advantage.

The traditional interpretation of “collateral damage” is limited to incidental civilian harm. Recently, however, arguments have been put forward in support of the view that various categories of protected military personnel (PMP) must also be considered as collateral damage, either as part of the traditional proportionality assessment under AP I or as part of distinct non-civilian proportionality assessment.

This study examines the various approaches to this issue and applies the underlying arguments to a specific category of PMP: prisoners of war (POWs). It is concluded that the interpretation of the existing treaty provisions of AP I, which regulate the civilian proportionality assessment, cannot be expanded to include incidental harm to POWs. However, the principles of IHL give rise to a distinct obligation to the parties of an armed conflict to conduct a non-civilian proportionality assessment that considers incidental harm to POWs as collateral damage.

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Table of Abbreviations

AJIL American Journal of International Law AP I Additional Protocol I of 10 June 1977

CIHL Customary International Humanitarian Law [Jean-Marie

Henckearts and Louise Doswald-Beck (eds.)], (CUP, 2005)

CUP Cambridge University Press

DOD Manual United States Department of Defence Law of War Manual

ed./eds Editor/editors

EJIL European Journal of International Law GC I First Geneva Convention of 12 August 1949 GC II Second Geneva Convention of 12 August 1949 GC III Third Geneva Convention of 12 August 1949 ICRC International Committee of the Red Cross ICRC Commentary

of 2016 on GC I

Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 2nd edition

ICRC Commentary

of 2017 on GC II Commentary on the Second Geneva Convention: Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 2nd edition ICRC Commentary

of 1960 to GC III

Commentary on the Third Geneva Convention: Convention (III) relative to the Treatment of Prisoners of War, 1st edition

ICRC Commentary

of 1987 on AP I Commentary on the First Additional Protocol to the Geneva Conventions of 12 August 1949: Protocol (I) and relating to the Protection of Victims of International Armed Conflict, 1st edition

IHL International humanitarian law

ILA International Law Association

ILS International Law Studies

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IsrLR Israel Law Review

n. Footnote

No. Number

OUP Oxford University Press

POW(s) Prisoner(s) of war

PMP Protected military personnel; referring to military wounded, sick and shipwrecked and military medical personnel

PLR Pepperdine Law Review

SSRN Social Science Research Network

VCLT Vienna Convention on the Law of Treaties of 23 May 1969 VJIL Virginia Journal of International Law

VJTL VanderBilt Journal of Transnational Law

Vol. Volume

YIHL Yearbook of International Humanitarian Law

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Table of International Instruments

24 April 1863 Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln (Lieber Code).

December 1868 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight (St Petersburg Declaration). 29 July 1899 Hague Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land.

12 August 1949 Geneva Convention (I) for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field (GC I).

12 August 1949 Geneva Convention (II) for the Amelioration of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GC II).

12 August 1949 Geneva Convention (III) relative to the Treatment of Prisoners of War (GC III).

8 June 1977 Protocol (I) Additional to the Geneva Conventions of 12 August 1949, and Concerning the Protection of Victims of International Armed Conflicts (AP I).

23 May 1969 Vienna Convention on the Law of Treaties (VCLT).

17 July 1998 Rome Statute of the International Criminal Court, last amended 10 June 2010 (Rome Statute).

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Introduction

When planning and conducting attacks within the context of an armed conflict, international humanitarian law (IHL) requires military commanders to carry out a proportionality assessment. This assessment consists of two rules: the precautions rule and the proportionality rule. The former entails the obligation to take all feasible precautions in planning and conducting an attack to avoid or minimize collateral damage and to refrain from launching the attack or postpone or cancel it if it becomes apparent that the expected collateral damage is excessive in relation to the military advantage. The latter lays down the prohibition on launching an attack that may be expected to cause collateral damage that would be excessive in relation to the military advantage.

This study focuses on the scope of collateral damage. According to the traditional interpretation, this is limited to the incidental civilian harm. Recently, however, it has been argued that incidental harm to military wounded, sick and shipwrecked and military medical personnel (hereafter: protected military personnel/PMP) must also be considered as collateral damage. Anything on the contrary would not be in conformity with the special protection they enjoy under IHL.

The underlying logic can be shown by providing an extreme example: if it is accepted that incidental harm to PMP is not considered when carrying out a proportionality assessment, a military objective that is subject to attack, of whatever military advantage, for example an old out-of-use army barrack, could be lawfully targeted even if it is being used as shelter by military wounded and sick. The presence of the military personnel, however large in quantity and regardless of their special protection from direct attack, would be irrelevant for proportionality considerations.

In relation to the new understanding of the proportionality assessment, a particular group of PMP is rarely specifically mentioned: prisoners of war (POWs). However, since they also enjoy special protection under IHL it could be argued that incidental harm to POWs must be considered as collateral damage for purposes of the proportionality assessment.

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This leads to the following research question:

Does incidental harm to prisoners of war enter the collateral damage side of the proportionality assessment under international humanitarian law?

To answer the research question, the following sub-questions are discussed:

1. What is the traditional interpretation and underlying rationale of the proportionality assessment under IHL?

2. What are the arguments and underlying legal bases for an obligation to consider incidental harm to protected military personnel as collateral damage in a proportionality assessment?

3. Is there an obligation to regard incidental harm to POWs as collateral damage for the purpose of a proportionality assessment, and if so, what is the legal basis of this obligation?

The following limits have been set with regard to the scope of the study:

The notion of ‘proportionality’ in international law exists in various forms. This study, however, is limited to proportionality as the obligation under IHL to minimize collateral damage and ensure that an attack does not cause excessive collateral damage.

This study relates to POWs, a status that solely exists in international armed conflicts. Therefore, the law of non-international armed conflict will not be taken into consideration. Instead, only the IHL rules related to international armed conflict will be relied upon.

Since the collateral damage effects of attacks are most critical with regard to persons, the collateral effects on objects are excluded from the scope of this study.

Lastly, this study makes use of a doctrinal positivistic research method and therefore focuses on examining what the law is and how it should be interpreted, not on what the law should be and how it should be altered.

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Chapter 1. The proportionality assessment under IHL

1.1 Introduction

This chapter answers the following question: what is the traditional interpretation and the underlying rationale of the proportionality assessment under IHL? In doing so, first some preliminary considerations on the notion of ‘proportionality’ are discussed in paragraph 1.2. The traditional interpretation of the proportionality assessment is explained in paragraph 1.3. Lastly, paragraph 1.4 examines the underlying rationale of the proportionality assessment.

1.2 Preliminary considerations

1.2.1 The precautions- and proportionality rule

Military commanders must carry out a proportionality assessment when planning and conducting an attack. First, they must take all feasible precautions to avoid or minimize the expected collateral damage. If a level of expected collateral damage remains after such precautions have been taken, it must be assessed whether this is excessive in relation to the anticipated concrete and direct military advantage. If this is answered affirmatively, the military commander must refrain from launching the attack or postpone or cancel it. Launching such a disproportionate attack is prohibited.

Consequently, even though the proportionality rule allows for the causing of a certain level of collateral damage, the wilful or intentional causing of “proportionate but avoidable” collateral damage is not permitted due to the application of the precautions rule.1 It is therefore clear that the proportionality rule must be applied after the precautions rule.2 However, for the purpose of this study, the content of the proportionality rule is discussed first, in order to elaborate on the interpretation of the respective elements. The various concepts apply similarly in relation to the precautions rule.

1_{Ian Henderson, The Contemporary Law of Targeting: Military Objectives, Proportionality and Precautions in}

Attack under Additional Protocol I (Martinus Nijhof, 2009) 168.

2_{Geoffrey S. Corn, ‘War, Law, and the Oft Overlooked Value of Process as a Precautionary Measure’, PLR}

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1.2.2 The proportionality principle and the proportionality assessment

There is an important difference between the ‘proportionality assessment’ and the ‘principle of proportionality’. The principle, in a general manner, governs the relationship between the means and ends of warfare and regulates that even where one is justified in acting, one must not act in a way that is unreasonable or excessive.3 The principle lies at the core of the proportionality assessment and contributes to the clarification of matters concerning the underlying rules.4 This chapter, however, examines only the interpretation of the proportionality assessment, not that of the underlying principle.

1.2.3 Lawful targets

The rules of precautions and proportionality come into play only after it has been verified that an attack is directed against a lawful target. Only military objectives are lawful targets.5 These can be both persons and objects.6

Targetable persons

Pursuant to the IHL principle of distinction, parties to an armed conflict must at all time distinguish between ‘civilians’ and ‘combatants’ and may direct their attacks only against the latter.7

3_{Michael Newton and Larry May, Proportionality in International Law (OUP, 2014), 15; United States}

Department of Defence, Law of War Manual (updated ed. December 2016) (DOD Manual), § 2.4.

4_{ICRC, Commentary on the First Additional Protocol to the Geneva Conventions of 12 August 1949, and}

relating to the Protection of Victims of International Armed Conflict, 1st edition (1987) (ICRC Commentary of 1987 on AP I), 2207.

5_{AP I, Article 52(2).} 6_{Henderson (n.1) 43.}

7_{AP I, Article 48, 51(2); Jean-Marie Henckaerts and Louise Doswald-Beck, ICRC, Customary International}

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Combatants are defined as members of the following four groups:

1) The armed forces of a party to the conflict, including members of militias or volunteer corps forming part of such armed forces,8 but excluding medical and religious personnel9 and members of the armed forces exclusively and permanently assigned to civil defence organisations;10

2) Militias and volunteer corps who do not fall into the first category but do fulfil the following conditions: they are commanded by a persons responsible for his subordinates; they have fixed distinctive sign recognizable at a distance; they carry their arms openly; and they conduct their operations in accordance with the laws and customs of war;11

3) The regular armed forces who profess allegiance to a government or an authority not recognized by the detaining or attacking party;12

4) The inhabitants of a non-occupied territory who, on the approach of the enemy, spontaneously take up arms to resist the invading forces without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war (levée en masse).13

The concept of civilian is negatively defined. A civilian is any person who does not belong to any of the above-mentioned categories of persons.14 In other words, anyone who is not a combatant is a civilian. The term non-combatants is also sometimes used, however, the terms are not synonymous. Non-combatants include civilians but also medical and religious personnel and members of the armed forces exclusively and permanently assigned to civil defence organisations.15

8_{AP I, Article 43(1); GC III, Article 4(A)(1); CIHL, Rule 3, 4.} 9_{AP I, Article 43(2); GC III, Article 33; CIHL, Rule 3.} 10_{AP I, Article 67.}

11_{GC III, Article 4(A)(2).} 12_{GC III, Article 4(A)(3).} 13_{GC III, Article 4(A)(6).}

14_{AP I, Article 50(1); CIHL, Rule 5.} 15_{Henderson (n.1) 91.}

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There are two exceptions to the general rule that only combatants may be attacked and that civilians are protected from attack. First of all, civilians can lose their protection when and for such time they directly participate in hostilities.16 In such situations, they retain their status as civilian but become temporary lawful targets. Combatants, on the other hand, gain protection from direct attack when they are placed hors de combat.17

Targetable objects

With regard to objects, again a distinction has to be made between ‘civilian objects’ and ‘military objectives’ and attacks may only be directed against the latter.18 Objects are qualified as military objectives based on a two-pronged test.19_{First, it must be determined that}

the object, based on its nature, location, purpose or use makes an effective contribution to the military action of the belligerent party. Second, the destruction, capture or neutralization must offer a definite military advantage for the attacking party.

Civilian objects are negatively defined as all objects that are not military objectives.20 They are protected against attack, unless and for such time as they are military objectives.21 Objects that are simultaneously used for civilian and military purposes (‘dual-use objects’) are considered as military objectives if they fulfil the two previously mentioned criteria.22

1.3 The proportionality rule

The proportionality rule qualifies disproportionate attacks as indiscriminate attacks which it subsequently prohibits.23 A disproportionate attack is one that “may be expected to cause incidental loss of civilian life, injury to civilians [damage to civilian objects] or a combination

16_{AP I, Article 51(3); CIHL, Rule 6.}

17_{AP I, Article 41(1); CIHL, Rule 47. See Chapter 3.2.3.} 18_{AP I, Article 48 and 52; CIHL, Rule 7.}

19_{AP I, Article 52(2); CIHL, Rule 8.} 20_{AP I, Article 52(1); CIHL, Rule 9.} 21_{AP I, Article 52(1); CIHL, Rule 10.}

22_{Nils Melzer, International Humanitarian law: a Comprehensive Introduction, (ICRC, 2016), 92-3;}

International Law Association Study Group, The Conduct of Hostilities and International Humanitarian Law: Challenges of the 21st_{Century’, ILS 93 (2017) (ILA Study Group) 336.}

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thereof, which would be excessive in relation to the concrete and direct military advantage anticipated”.

1.3.1 Collateral damage

The traditional interpretation of collateral damage is that it encompasses civilian harm only.24 This follows from a textual reading of AP I, which refers to “loss of civilian life” and “injury to civilians”. As discussed in chapter 1.2.3, civilians are persons who are not combatants. Consequently, any non-civilian harm, even if unintended, is not collateral damage and does not form part of the proportionality assessment.

All civilians have an equal “value” as collateral damage within the proportionality assessment. It does not matter whether the civilian has previously taken a direct part in hostilities, whether the civilian is (voluntarily) being used as a human shield or whether the civilian is located inside a military objective.25

Since civilians cannot be made the object of direct attack, the harm inflicted on them is always incidental and may not be the intended purpose of the attack. Moreover, only collateral damage that is an expected (i.e. foreseeable)26 consequence of the attack must be considered.27 This excludes harm that is “not likely, probably, or certain, and therefore is only a mere possibility”.28

Lastly, although not completely uncontroversial, the prevailing view is that collateral damage includes both the direct and indirect effects of the attack.29 Direct effects are the immediate

24_{Henderson (n.1) 206; Yoram Dinstein, The Conduct of Hostilities Under the Law of International Armed}

Conflict, 3rd edition (CUP, 2016) 154-5; Rogier Bartels, ‘Dealing with the principle of proportionality in armed

conflict in retrospect: the application of the principle in international criminal trial, 46 IsrLW (2013), 304.

25_{Bartels (n.25) 303.}

26_{ILA Study Group (n.23) 353.}

27_{Henderson (n.1) 211; ICRC Commentary of 1987 on AP I (n.4) 2212.}

28_{DOD Manual 2016 (n.3) § 5.12.1.3; Ian Henderson and Kate Reece, ‘Proportionality under International}

Humanitarian law: The ‘Reasonable Military Commander’ Standard and Reverberating Effects’, 51 VJTL (2018), 19.

29_{Henderson (n.1) 207-11; ILA Study Group (n.23) 352; Henderson and Reece (n.29) 15, 18; Isabel Robinson &}

Ellen Nohle, Proportionality and Precautions in Attack: The Reverberating Effects of Using Explosive Weapons

in Populated Areas, 98 IRRC (2016), 107, 116. For an opposing view see Dinstein (n.25) 159 (“the only

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consequences of a military action, unaltered by intervening events or mechanisms.30 Indirect effects are mostly long-term consequences that are not directly or immediately caused by the attack but are nevertheless a consequence of it.31 The latter may include humanitarian consequences but other intangible effects on the civilian population, such as inconvenience, irritation, stress, or fear are excluded.32

1.3.2 Military advantage

The collateral damage must be weighed against the anticipated concrete and direct military advantage of the attack. It is clear that only military advantage can justify collateral damage. All benefits of a non-military nature, such as political, psychological, economical, financial, social or moral benefits, are not considered.33_{Moreover, it is generally agreed that military}

advantage refers to the advantage anticipated from the specific military operation of which the attack is part as a whole and not from isolated or particular parts of that operation.34_However,

the military advantage is limited to that advantage which is direct and concrete. The former means that there has to be “a real (i.e. a tangible or measurable) effect” and the latter refers to “the chain of causation”.35 As a result, any vague, hypothetical, speculative, long-term or indirect military advantages are not to be taken into consideration.36

It is worth mentioning that military advantage for the purpose of assessing proportionality must be distinguished from military advantage for the purpose of assessing whether an object is a military objective. The former encompasses the previously mentioned ‘direct and concrete’ standard, while the latter entails the slightly lower standard of ‘definite’ military advantage.37

30_{Tallin Manual 2.0 on the International Law Applicable to Cyber Operations, Michael N. Schmitt (ed.), 2nd}

edition (CUP, 2017) (Tallin Manual 2.0), 472.

31_{ICRC Report, ‘Expert Meeting, Explosive Weapons in Populated Areas: Humanitarian, Legal, Technical and}

Military Aspects’ (ICRC, 2015), 21.

32_{Henderson and Reece (n.29); Tallin Manual 2.0 (n.31) 472; DOD Manual 2016 (n.3) § 5.12.1.2.} 33_{Melzer (n.23) 101; ILA Study Group (n.23) 363.}

34_{Henderson (n.1) 200; DOD Manual 2016 (n.3) § 5.12.2.1; Michael Bothe, Karl Partsch and Waldemar Solf,}

New Rules for Victims of Armed Conflicts: Commentary on the two 1977 Protocols to the Geneva Conventions of 1949, 2nd edition (Martinus Nijhof, 2013), 352.

35_{ILA Study Group (n.23) 364.}

36_{Melzer (n.23) 101; ILA Study Group (n.23) 364; DOD Manual 2016 (n.3) § 5.12.2; United Kingdom Ministry}

of Defence, The Manual of the Law of Armed Conflict (OUP, 2004) (MOD Manual) § 5.33.3.

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1.3.3 Excessiveness

The final element of the proportionality rule is the relationship between the collateral damage and military advantage. There does not have to be a complete balance between the two variables, as long as the former is not excessive in relation to the latter. Important to note is that only the collateral damage that was expected enters the equation, not the actual collateral damage that was caused.38 Moreover, despite of what the ICRC has suggested,39 there is no upper limit beyond which extensive collateral damage will become unacceptable merely because of its scale.40 As long as the military advantage is extremely significant then the permissible collateral damage can be extensive.41 It just cannot be excessive.

Problematically, evaluating expected collateral damage in relation to anticipated military advantage intrinsically involves both professional military judgement as well as moral and ethical considerations.42 It is based on quantitative as well as qualitative factors and always depends on the circumstances of each specific case.43 The determination is done from the perspective of a “reasonable military commander”44 and on the basis of the information reasonably available to him at the relevant time.45 This leaves the military commander a certain margin of discretion; nevertheless, the standard of excessiveness is not a subjective one.46 However, neither is it a wholly objective one, but rather a hybrid subjective-objective test.47 Henderson deconstructs the proportionality test into two parts: a subjective assessment by the commander of the military advantage and the collateral damage and an objective determination based on the balancing of these interests.48 Wright extends this model even further by scaling or ranging military advantage and collateral damage to determine whether

38_{Henderson (n.1) 226.}

39_{ICRC Commentary of 1987 on AP I (n.4), 1980}

40_{Frits Kalshoven, ‘Remarks’ in ASIL Proceedings, Implementing Limitations on the Use of Force: The}

Doctrine of Proportionality and Necessity (1992), 44.

41_{Henderson (n.1) 226.}

42_{DOD Manual 2016 (n.3) § 5.12.3.} 43_{ILA Study Group (n.23) 368.} 44_{Henderson and Reece (n.29) 10-1.}

45_{William H. Boothby, The Law of Targeting (OUP, 2012), 89; Bothe, Partsch and Solf (n.35) 531-2.} 46_{ILA Study Group (n.23) 369.}

47_{Jason D Wright, ‘’Excessive’ Ambiguity: Analysing and Refining the Proportionality Standard’, 94 IRRC}

(2012), 847.

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the respective values are “marginal”, “moderate” or “substantial”.49 As a result, once the variables have subjective values, then those values can be objectively weighed.

1.4 The precautions rule

As a general rule, constant care must be taken to spare the civilian population.50 More specifically, various types of precautionary measures must be taken prior and during an attack. The measures that relate to proportionality are discussed below.

1.4.1 Minimizing collateral damage

Those who plan or decide upon attacks must take all feasible precautions in the choice of means and methods of attack to avoid or at least minimize collateral damage.51 Accordingly, it is not sufficient to merely conclude that the expected collateral damage is not excessive, but there also exists a positive obligation to reduce it as far as possible.52

1.4.2 Proportionality

Those who plan or decide upon attacks must refrain from launching an attack if the remaining expected collateral damage is excessive in relation to the anticipated military advantage.53 This obligation reflects the prohibition on disproportionate attacks, as discussed in paragraph 1.3.

49_{Wright (n.48) 847.}

50_{AP I, Article 57 (1); CIHL, Rule 15.}

51_{AP I, Article 57 (2)(a)(ii); CIHL, Rule 15, 17.} 52_{Henderson (n.1) 168. See paragraph 1.2.1.} 53_{AP I, Article 57 (2)(a)(iii); CIHL, Rule 14, 18}

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1.4.3 Feasibility

The before mentioned obligations are limited to those measures that are “feasible”, meaning those that are practically possible. It is a question of resources and capacity and depends on the circumstances ruling at the time.54

1.4.4 Cancelling or suspending

If it becomes apparent that the target is not a military objective, that it is subject to special protection or if the attack may be expected to cause excessive collateral damage, the attack must be cancelled or suspended.55 This applies not only to those planning or deciding upon attacks, but also, and primarily, to those executing them.56

1.4.5 Advance warning

When circumstances permit, effective advance warning must be given of attacks which may affect the civilian population.57 This is a precautionary measure to minimize incidental harm and continues to apply even in situations where the expected collateral damage is proportionate. It stems from the idea that civilians must be protected as much as possible from the violent consequences of hostilities.58

1.5 The underlying rationale

The underlying rationale of the traditional interpretation of the proportionality assessment can be found in the principles of IHL, which aim to protect the civilian population from the dangers arising from hostilities.

54_{Melzer (n.23) 104; ILA Study Group (n.23) 377-8; Hans-Peter Gasser and Knut Dörmann, ‘Protection of the}

Civilian Population’ in The Handbook of International Humanitarian Law, Dieter Fleck (ed.), 3rd edition (OUP, 2013), 247.

55_{AP I, Article 57(2)(b); CIHL, Rule 19.}

56_{ICRC Commentary of 1987 on AP I (n.4) 2220; Henderson (n.1) 182.} 57_{AP I, Article 57(2)(c); CIHL, Rule 20.}

58_{Pnina Sharvit Baruch and Noam Neuman, ‘Warning Civilians Prior to Attack under International Law: Theory}

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1.5.1 Humanity, military necessity and distinction

IHL balances humanitarian requirements and the sad necessities of war.59 Every one of its rules constitutes a compromise between the two opposing principles of humanity and military necessity.60 The proportionality assessment is an explicit expression of this balancing act. 61

The principle of humanity seeks to limit the suffering and destruction of armed conflicts. It restricts the permissible actions of fighting forces and thereby limits the excesses of war.62 The principle is described as prohibiting the infliction of suffering, injury, or destruction not actually necessary to accomplish a legitimate military purpose.63

The principle of military necessity was first defined in the Lieber Code and the Preamble of the St Petersburg Declaration. The principle is both permissive, by allowing combatants to kill, injure and damage lawful targets,64 as well as prohibitory, by limiting the extent of permissive military action to that which is necessary for the achievement of legitimate goals.65

Another crucial principle from which the proportionality assessment is derived is the principle of distinction. This principle aims to protect the civilian population from the effects of hostilities.66 It is based on the notion that war is waged between soldiers and that the population should remain outside hostilities.67 The contemporary codification prescribes that parties to an armed conflict must at all times distinguish between the civilian population and combatants and must direct their operations only against the latter.68

59_{ICRC Commentary of 1987 on AP I (n.4) 2219; Gasser and Dörmann (n.55) 244.}

60_{Michael N. Schmit, ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the}

Delicate Balance’, 50 VJIL (2010), 798; Marco Sassòli, ‘The Implementation of International Humanitarian Law: Current and Inherent Challenges’, in Timothy L.H. McCormack (ed.) Yearbook of International

Humanitarian Law (Asser Press, 2009), 45, 50.

61_{Gasser and Dormann (n.55) 244; Stefan Oeter, ‘Methods and Means of Combat’ in The Handbook of}

International Humanitarian Law, Dieter Fleck (ed.), 3rd_{edition (OUP, 2013), 199.}

62_{Larissa Fast, ‘Unpacking the principle of humanity: tensions and implications’, IRRC 97:897/898 (2016) 118.} 63_{MOD Manual 2004, (n.37) § 2.4; DOD Manual 2016 (n.3) § 2.3.}

64_{United States of America v List (‘Hostages Trial’), Case No. 7 (19 February 1948), reprinted in 11 Trials of}

War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 (1950), at 1253.

65_{Henderson (n.1) 44; Mary Ellen O’Connell, ‘Historical Development and Legal Basis’, in The Handbook of}

International Humanitarian Law, Dieter Fleck (ed.), 3rd_{edition (OUP, 2013), 37.}

66_{Melzer (n.23) 18; ICRC Commentary of 1987 on AP I (n.4) 1863; Bothe, Partsch and Solf (n.35) 322.} 67_{ICRC Commentary of 1987 on AP I (n.4) 1822.}

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1.5.2 Protecting the civilian population

At the core of all previously mentioned principles lies the crucial rationale of the proportionality assessment: the general protection of the civilian population against the dangers arising from hostilities.69 This is affirmed by the location of the two underlying rules of the proportionality assessment in Part IV Section I of AP I. The Section entails provisions designed to provide an effective and objective legal protection for the civilian population.70 More generally, the principal concern which led to the adoption of AP I, was “a shared need to formulate more effective rules to protect the civilian population and individual civilians from the effects of attacks in the light of the development of air power and modern methods and means of warfare”.71

Civilians enjoy this protection because they are seen as mere bystanders in an armed conflict who have not accepted the risks that come with it, unlike combatants who take a direct part in military operations and thereby have accepted the risk to be targeted.72 As a result, civilians are granted a general protection from the effects and consequences of armed conflict.

1.6 Conclusion

The proportionality assessment under IHL consists of the precautions- and proportionality rule. When military commanders decide to launch an attack, they must first take all feasible precautions to prevent or at least minimize the expected “collateral damage”. Traditionally, this refers to civilian harm only. If after the required precautions a level of collateral damage remains, this must be weighed against the anticipated concrete and direct military advantage of the attack. The attack must be cancelled or suspended if the collateral damage is excessive in relation to the military advantage. This is where the proportionality rule comes into play. The rule qualifies excessive attacks as a type of indiscriminate attacks, which it subsequently prohibits.

69_{ICRC Commentary of 1987 on AP I (n.4) 1923.} 70_{Bothe, Partsch and Solf (n.35) 317.}

71_{Idem, 315.}

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The underlying rationale of the two rules is to protect the civilian population against the effects of hostilities. Civilians, unlike combatants, have not accepted the dangers that arise from hostilities and must therefore be protected from any direct or indirect harm. This follows from the IHL principles of military necessity, humanity and distinction.

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Chapter 2. Protected military personnel

and the proportionality assessment

As explained in chapter 1, the traditional interpretation of collateral damage encompasses only civilian harm. This chapter discusses the relatively new view that incidental harm to military wounded, sick and shipwrecked and military medical personnel (hereinafter: protected military personnel/PMP)73 must also be considered as collateral damage, based on the special protection they enjoy. Paragraph 2.2 sets out what this special protection entails. Paragraphs 2.3 and 2.4 provide an overview of the proportionality and precautions approach, which argue for an expansion of the interpretation of collateral damage under AP I to include non-civilian harm. Paragraph 2.5 sets out an alternate approach, according to which IHL requires for a distinct non-civilian proportionality assessment. The foregoing provides an answer to the question: what are the arguments and underlying legal bases for an obligation to consider incidental harm to PMP as collateral damage in a proportionality assessment?

2.2 Special protection of military personnel

The special protection of military personnel can be found in various legal sources. Article 12 GC I provides that members of the armed forces who are wounded or sick, shall be respected and protected in all circumstances. Article 12 GC II lays down the same obligation in respect to members of the armed forces who are at sea and who are wounded, sick or shipwrecked. Article 10 AP I provides that all the wounded, sick and shipwrecked (military and civilian) shall be respected and protected. The special protection of military medical personnel is regulated in Article 24 GC I and Article 36 GC II, which provide that they shall be respected and protected in all circumstances. This special protection entails two distinct obligations on

73_{The various authors and sources speak of the protection of wounded and sick members of the armed forces,}

wounded, sick and shipwrecked members of the armed forces at sea and military medical personnel. Unless a specific distinction must be made between the various categories, they are referred to as ‘protected military personnel/(PMP)’. However, POWs, another category of PMP, are not yet included in this term. This category is discussed in Chapter 3. Moreover, note that protected civilian personnel are not discussed since it is uncontested that they fall within the scope of the proportionality assessment based on their qualification as ‘civilian’.

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the parties to the conflict: to respect and to protect. The former entails an obligation to not attack or otherwise harm, the latter to take (pro)active measures against various dangers arising in the context of an armed conflict.74

2.3 Proportionality approach

Pursuant to the proportionality approach, the interpretation of collateral damage must be expanded to include incidental harm to PMP when applying the precautions rule as well as the proportionality rule. It is argued that the required legal basis can be found in the special protection of PMP, in the principle of proportionality and in the rules on the conduct of hostilities.

2.3.1 Laurent Gisel

Laurent Gisel was one of the first IHL authors to argue that expected incidental harm to PMP must be included as collateral damage under the proportionality assessment.75 He provides various arguments in support of this view.76

First, he states that it would be contrary to the system of special protection to claim that specially protected persons are less protected than civilians, who enjoy only a general protection.77

Second, he argues that there is no apparent reason why the obligation to respect and protect would be limited to the prohibition on direct attacks and not extend to all the rules on the conduct of hostilities, including the precautions- and proportionality rule.78

74_{ICRC, Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of}

the Wounded and Sick in Armed Forces in the Field, 2nd_{edition, 2016 (ICRC Commentary of 2016 on GC I)}

1352; ICRC, Commentary on the Second Geneva Convention: Convention (II) for the Amelioration of the

Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, 2nd edition, 2017 (ICRC Commentary of 2017 on GC II) 1398; ICRC Commentary of 1987 on AP I (n.4) 1872.

75_{Laurent Gisel, ‘Can the Incidental Killing of Military Doctors never be excessive?’, 95 IRRC (2013).}

76_{One of his arguments is that persons cannot be less protected than objects. However, since objects are}

excluded from the scope of this study, this argument is not discussed.

77_{Gisel (n.75) 221-2.} 78_{Idem, 222.}

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Third, it is the fundamental purpose of AP I to afford protection without distinguishing between civilians and military personnel.79 Since civilians are undoubtedly protected from incidental harm, it would be contrary to the purpose of AP I to exclude PMP.

Fourth, Gisel argues that the exclusion of PMP from the proportionality assessment is contrary to the object and purpose of the rules governing the conduct of hostilities under AP I, which is to find an appropriate balance between the principles of military necessity and humanity.80

Lastly, according to Gisel, Article 8(2)(b)(xxiii) of the Rome Statute81 on human shields supports the conclusion that all persons protected against direct attack are also protected from incidental harm since the provision lists civilians and ‘other protected persons’.82_{In this}

framework, it has been recalled that the presence of protected persons in the vast majority of cases would influence the proportionality test as defined in Articles 51 and 57 AP I.83

2.3.2 International Committee of the Red Cross

While the commentaries of the ICRC of 1952 and 1960 are silent on the matter,84 the new commentaries of 2016 on GC I and of 2017 on GC II ask and answer the question whether the obligation to respect and protect military wounded, sick and shipwrecked persons entails that they must be taken into consideration for the purposes of the proportionality assessment.85

The commentary on GC I notes that the omission of the military wounded and sick from Article 51(5)(b) AP I might not be intentional but rather because of an editorial consideration

79_{Gisel (n.75) 224-5.} 80_{Idem 225.}

81_{Rome Statute of the International Criminal Court of 17 July 1998, last amended 10 June 2010.} 82_{Gisel (n.75) 226.}

83_{Knut Doermann, Elements of War Crimes under the Rome Statute of the International Criminal Court (CUP,}

2002), 345.

84_{As mentioned in Chapter 2.2.1, the obligation to respect and protect military is also laid down in Article 10 AP}

I. The Commentary of 1987 on AP I, however, does not speak of the possible inclusion of these persons in the proportionality assessment. Nevertheless, the ICRC is currently updating all four Geneva Conventions and both Additional Protocols, so it is to be expected that this will be discussed in the new Commentary to AP I.

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since the provision is part of a specific chapter on ‘Civilians and Civilian Protection’.86 This argument is absent from the commentary on GC II.

Both commentaries follow with a more substantive argument by stating that, in view of the specific protection accorded to military wounded, sick and shipwrecked, most importantly the protection against direct attacks, a fortiori they should also benefit from the protection accorded to civilians.87 Consequently, if civilians are to be included in the proportionality assessment, so should the military wounded, sick and shipwrecked. This is substantiated with the argument that their exclusion would render their presence in the vicinity of legitimate military objectives legally irrelevant which, in turn, would contradict the explicit obligation to respect them in all circumstances.88_{Moreover, it would contradict the basic rationale of}

according special protection to the military wounded, sick and shipwrecked since it would be unreasonable to consider that direct attacks against them would be strictly prohibited while excessive incidental harm would not be prohibited.89

The commentaries conclude that the presence of military wounded, sick and shipwrecked in the vicinity of a military objective must be considered when applying the proportionality rule.90_{Furthermore, based on the same rationale, precautions must be taken in relation to}

military wounded and sick, to protect them from avoidable incidental harm.

Additionally, the new commentaries take the position that incidental harm to military medical and religious personnel must also be considered as collateral damage. This contention is based on Article 24 GC I and Article 36 GC II, which likewise entail the obligation to respect and protect these persons. Correspondingly, the commentaries argue that, at a minimum, respect requires compliance with the duties of abstention, such as not to attack medical and religious personnel, be it directly, indiscriminately or in violation of the principle of proportionality.91

86_{ICRC Commentary of 2016 on GC I (n.75) 1355.}

87_{ICRC Commentary of 2016 on GC I (n.75) 1357; ICRC Commentary of 2017 on GC II (n.75) 1403.} 88_Ibidem.

89_Ibidem. 90_Ibidem.

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2.3.3 Jann Kleffner

In a recent blog post, Jann Kleffner developed an argument supporting the view of the new ICRC Commentary on Article 12 GC I.92 He examines the obligation to respect and protect military wounded and sick and how that obligation can be squared with their absence from the proportionality assessment. He identifies three possible interpretations of the obligation.

The first option constitutes an absolute prohibition meaning that any incidental harm to military wounded and sick falls foul of the obligation and therefore constitutes a violation of IHL. However, this would be unreasonable since it would effectively set aside the right of parties to an armed conflict to attack lawful targets whenever there is a risk that military wounded and sick would suffer incidental harm.

The second option describes an absolute right of parties to an armed conflict to attack lawful targets. Consequently, this absolute right supersedes the obligation to respect and protect. As a result, any incidental harm to military wounded and sick, even when it is clearly excessive, is considered lawful. However, this leads to equally unreasonable results since it renders the respect and protection to which military wounded and sick are entitled effectively meaningless whenever the attack on a lawful target may be expected to cause them incidental harm.

The final option presented is in line with the view expressed in the new ICRC Commentary. It requires a proportionality assessment in which incidental harm to military wounded and sick is legally assimilated to harm to civilians. Kleffner argues that proportionality and its standard of excessiveness should be seen as a general principle of IHL that is applicable whenever an attack on a lawful target is expected to cause incidental harm to persons who enjoy protection from direct attack.93 As a result, not only the military wounded and sick are to be taken into account, but all military personnel that are to be respected and protected.

92_{Jann Kleffner, Transatlantic Workshop on International Law and Armed Conflict: Wounded and Sick and the}

Proportionality Assessment, Intercross Blog. Available at: intercrossblog.icrc.org [last accessed: 5 April 2018].

93_{See also Bothe, Partsch and Solf (n.35) 128. They argue that proportionality, as a general principle, is not}

restricted to the protection of the civilian population. As a result, collateral damage caused to military medical units also enters the proportionality assessment. See also Bartels (n.25) 304. He suggests that the principle of proportionality is broader than the rules that codified the principle in AP I. The underlying principle would include prohibited attacks on military objects that would cause excessive damage to any person who cannot be

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2.3.4 International Law Association Study Group

The ILA Study Group argues that the principle of proportionality might apply to both civilians and non-civilian protected persons.94 Consequently, incidental harm to such protected persons render the attack prohibited if it is excessive compared to the concrete and direct military advantage anticipated.95 According to the Study Group, this inclusion can be based on the special protection and rules on the conduct of hostilities. No distinction is made between the precautions rule and the proportionality rule, therefore it can be understood that this argument relates to the proportionality assessment as a whole and thus fall within the proportionality approach.

However, the Study Group continues by saying that if it is not accepted that the inclusion can be based on the application of the specific rules, “as a minimum, the Martens Clause would demand a constant effort to spare these actors and facilities from unnecessary risk and assess proportionality when operationally feasible”.96 This argument is discussed in more detail in paragraph 2.4.2, since it refers to the feasible prevention of unnecessary risk only and therefore falls under the precautions approach.

2.4 Precautions approach

Following the precautions approach, the interpretation of collateral damage must be expanded to include incidental harm to PMP. However, following this approach, this expansion only applies in relation to the precautions rule and not the proportionality rule. It is argued that the legal basis of this expansion can be derived from Article 57 AP I or, alternatively, the Martens Clause.

targeted directly under IHL: not only civilians but also persons hors de combat. However, he continues by clarifying that “it is only civilian damage that has to be balanced against the military advantage. Persons hors de

combat […] have protected status under IHL; this does not mean, however, that they are civilians. They

therefore do not benefit from the ‘protection’ of the principle of proportionality.”

94_{ILA Study Group (n.23) 358.} 95_{Idem, 359.}

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2.4.1 United States DOD Law of War Manual

In the June 2015 version of the DOD Manual it is indicated that PMP do not fall within the scope of collateral damage when carrying out a proportionality assessment.97 In the updated version of June 2016 it is again stated that the proportionality rule only requires considerations of civilians, not of military personnel.98 This applies even if the military personnel may not be made the object of attack.99 The rationale behind this approach is that military personnel are deemed to have accepted the risk of death or injury due to their proximity to military operations.100 As a result, their presence does not serve to exempt nearby military objectives from attack due to the risk that PMP would be incidentally harmed. However, the Manual continues by stating that the obligation to respect and protect military personnel as well as the prohibition on direct attacks on military personnel placed hors de combat, does entail that feasible precautions must be taken to reduce the risk of incidental harm to military personnel protected against direct attacks.101

2.4.2 Geoffrey Corn and Andrew Culliver

Geoffrey Corn and Andrew Culliver have examined the approaches of the DOD Manual of June 2015 and of the ICRC’s Commentary to GC I of 2016. They argue that both are defective; the (old) DOD Manual’s approach is pre-emptively dismissive of the obligation to respect and protect PMP by not including them within the scope of the proportionality assessment but the ICRC’s approach fails to contemplate the suggested adverse effects of its asserted expansion of the proportionality assessment.102 Corn and Culliver therefore suggest an alternate approach which obliges military commanders to mitigate the risk of incidental harm to PMP.103 They find the legal basis for the obligation to mitigate the risks in the Martens Clause.

97_{United States Department of Defence, Law of War Manual (June 2015), § 7.3.3.1, 7.8.2.1, 7.10.1.1.} 98_{DOD Manual 2016 (n.3) § 5.10.1.2.}

99_{Idem § 5.10.1, 5.10.1.2, 7.10.1.1, 7.12.2.5.} 100_{Idem, § 7.8.2.1, 7.3.3.1.}

101_{Idem, § 5.10.1, 5.10.1.2, 7.3.3.1, 7.8.2.1. The prohibition on direct attack on persons hors de combat is further}

discussed in Chapter 3.

102_{Geoffrey S. Corn and Andrew Culliver, ‘Wounded Combatants, Military Medical Personnel, and the}

Dilemma of Collateral Riks’, SSRN (2016), 2.

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The Martens Clause was first presented in the Preamble to the 1899 Hague II Convention.104 The modern restatement can be found in Article 1, paragraph 2, AP I. The Clause embodies the notion that, where no specific rule applies, the core principles of IHL must be relied upon to regulate the conduct of hostilities.105 It is recognized as an important ‘gap filler’ to address areas of IHL,106 and reflects the idea that humanitarian aspirations, even in the midst of armed conflict, cannot be completely disregarded on the basis of expediency or artful treaty drafting.107

According to Corn and Culliver, by its nature the Clause provides a reasoned method of addressing the humanitarian concerns of PMP while remaining rooted in substantive IHL.108 It therefore provides for the required legal basis to apply the principle of proportionality to protect PMP from incidental harm.109_{This is similar to the argument proposed by Kleffner,}

however, Corn and Culliver limit the proportionality obligation to mitigating the risk of incidental harm by taking precautionary measures. They do not recognize that any residual collateral damage, when excessive in relation to the military advantage, can render the attack unlawful.

2.4.3 Geoffrey Corn

In a later blog post, Geoffrey Corn revisits the issue and examines the approach of new DOD Manual of 2016.110 According to Corn, the obligation to respect and protect indeed requires some effort to mitigate the risk of incidental injury since complete indifference to such risks

104_{Hague Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations}

concerning the Laws and Customs on Land, 29 July 1899, Preamble; Theodor Meron, ‘The Martens Clause, Principles of Humanity, and Dictates of Public Conschience’, 94 AJIL (2000), 78-9; Newton and May (n.3) 90.

105_{ICJ Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion (8 July 1996), § 226, 260.} 106_{Corn and Culliver (n.102) 15.}

107_{Newton and May (n.3) 90.} 108_{Corn and Culliver (n.102) 1.}

109_{Idem,15. See also, Marty Lederman, ‘A quick response to John Merriam on proportionality and military}

medical personnel’, Just Security (9 July 2016). Available at: justsecurity.org [last accessed: 30 May 2018] (“at a minimum, it certainly would not be a stretch to say that the “dictates of conscience” (cf. the Martens Clause) would prohibit any commander from being completely indifferent to such collateral harms”.); ILA Study Group (n.23) 359 (“as a minimum, the Martens Clause would demand a constant effort to spare these actors and facilities from unnecessary risk and assess proportionality when operationally feasible”).

110_{Geoffrey S. Corn, ‘Transatlantic Workshop on International Law and Armed Conflict: Wounded and Sick,}

Proportionality, and Armaments’, Lawfareblog (10 October 2017). Available at: lawfareblog.com [last accessed: 9 April 2018].

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would be incompatible with the underlying foundation of IHL. As a credible legal basis for requiring feasible precautionary measures to reduce the risks, Corn refers to his own proposed approach based on the Martens Clause and the approach suggested in the 2016 DOD Manual based on the precautions rule. He argues that the DOD approach strikes a necessary balance between the risks military personnel must accept as the result of their association with an armed force and the interests of humanity that make complete indifference to this risk intolerable. Moreover, he contends that the ‘feasibility’ element of this approach provides a more rational answer to practical dilemmas than the proportionality approach.

2.5 Dual assessment approach

Following the dual assessment approach, the principles of IHL can be relied upon to identify a distinct legal obligation to carry out a non-civilian proportionality assessment.

2.5.1 Aurel Sari and Kieran Tinkler

In a forthcoming article, Aurel Sari and Kieran Tinkler conclude that the previously presented views rely on a quasi-legislative competence to override the clear meaning of AP I by extending the scope of collateral damage.111 Instead, they identify a distinct obligation to carry out a non-civilian proportionality assessment. Their argument is based on the idea that PMP are, in principle, liable to incidental harm because the obligation to respect and protect protects them from direct attack but does not exempt them from incidental harm.112 However, this liability to incidental harm is not unlimited and must, at a minimum, be justified by the IHL principle of military necessity. 113 They rely on the principle of military necessity and not the seemingly applicable principle of proportionality because they argue that the latter “is little more than a restatement of the principle of military necessity”.114 Proportionality requires belligerents not to exercise the right to engage in attacks against military objectives in an unreasonable or excessive manner and therefore prohibits the conduct of hostilities

111_{Aurel Sari and Kieran Tinkler in a forthcoming article ‘Collateral Damage and the Enemy’ (on file with the}

authors), 89.

112_{Idem, 90-1, 94-7.} 113_{Idem, 91-2.} 114_{Idem, 20.}

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beyond the limits of military necessity.115 “Consequently, to the extend proportionality is conceived as a principle that governs the relationship between the means and ends of warfare, it is not truly a self-standing standard of IHL “but a condition implicit in the notion of military necessity”.116

First, Sari and Tinkler clarify that any expected incidental harm to PMP must be justified with reference to the military advantage anticipated from targeting the military objective and that even though the incidental non-civilian incidental harm may be of an advantage to the attacking party, this may not be considered as “military advantage”.117

Second, the principle of military necessity implies that “only that amount of incidental harm is permissible which is unavoidable and thus necessary in order to achieve the lawful military objective pursued by an attack”.118 Consequently, belligerent have a duty to minimize incidental harm to what is “unavoidable” by taking precautionary measures.119

Third, Sari and Tinkler provide that proportionality, as embedded in the principle of military necessity, requires a reasonable relationship between the means and ends.120 As a result, there must be a reasonable connection between the attack and the expected incidental harm to PMP. This means that the military advantage pursued must be capable of “justifying” the expected collateral damage. In other words, “the extent of the incidental harm must be proportionate to the level of military advantage, or else the harm could not be justified with reference to the military benefit sought”.121

Consequently, the principle of military necessity, with the underlying considerations of proportionality, requires that incidental harm to POWs must be limited to that which is “unavoidable” by taking feasible precautions to minimize the incidental harm and any residual incidental harm must be “justified” by the military advantage of the attack. These obligations together constitute a “non-civilian proportionality assessment”. This assessment exists separate from the civilian proportionality assessment, which continues to apply.

115_{Sari and Tinkler (n.111) 20.} 116_Ibidem. 117_{Idem, 92.} 118_{Idem, 93.} 119_Ibidem. 120_{Idem, 94.} 121_Ibidem.

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This dual assessment approach is similar to the proportionality approach since both require that incidental harm to PMP is considered when applying the precautions rule as well as the proportionality rule. However, it must be understood that the two approaches differ in an important aspect: the proportionality approach extends the scope of collateral damage to include incidental harm to PMP in the civilian proportionality assessment under AP I, while the dual assessment approach derives from the principles of IHL a distinct obligation to conduct a non-civilian proportionality assessment.

2.6 Conclusion

It is clear that IHL prohibits the launching of an attack that is directed against PMP. This can be derived from the obligation to respect and protect. The question is, however, whether IHL also protects them from the collateral effects of lawful attacks on military objectives.

The proportionality approach encompasses the view that the interpretation of collateral

damage as part of the proportionality assessment must be extended to include incidental harm to PMP. The legal basis for this obligation can be found in the special protection of PMP, the principle of proportionality and the rules on the conduct of hostilities as laid down in AP I. The various views that have been presented can be deducted in the following arguments:

A. The object and purpose of AP I requires that the precautions- and proportionality rule must consider incidental harm to all persons protected against direct attack, whether military or civilian.

B. As a result of the system of special protection, protected persons (including military personnel) cannot be less protected than civilians. PMP should therefore also benefit form the protection accorded to civilians.

C. It is illogical and unreasonable to consider that the obligation to respect and protect prohibits direct attacks against those that are protected under that obligation but does not prohibit excessive incidental harm.

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D. The principle of proportionality is applicable whenever an attack is expected to cause incidental harm to persons protected from direct attack, whether civilian or military.

The precautions approach contends that the interpretation of collateral damage as part of the

precautions rule in Article 57 AP I must be expanded to include incidental harm to PMP. However, any residual collateral damage to PMP cannot render an attack on a military objective unlawful. The underlying views can be broken down in the following arguments:

E. Feasible precautions must be taken to reduce the risk of incidental harm to PMP based on the protection they enjoy from direct attack.

F. Complete indifference to the incidental harm of PMP is incompatible with the underlying humanitarian foundation of IHL. Therefore, feasible precautions must be taken to minimize the risk of incidental harm to PMP.

The dual assessment approach provides that a distinct legal obligation to carry out a

non-civilian proportionality assessment can be derived from the principles of IHL, most importantly the principle of military necessity. This is embodied in the following argument:

G. The principles of IHL give rise to a distinct obligation to carry out a non-civilian proportionality assessment.

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Chapter 3. Prisoners of war

and the proportionality assessment

Chapter 2 provided an overview of the arguments in support of the view that there is an obligation to consider incidental harm to PMP as collateral damage within (parts of) the proportionality assessment. The personal scope, however, was limited to military wounded, sick and shipwrecked and military medical personnel. This chapter explores whether this obligation could also apply for POWs. First, the special protection of POWs is explained in paragraph 3.2. Next, the various arguments as presented in chapter 2.6 are applied to POWs and subsequently evaluated in paragraphs 3.3, 3.4 and 3.5. This provides an answer to the following question: is there an obligation under IHL to regard incidental harm to POWs as collateral damage for the purpose of a proportionality assessment, and if so, what is the legal basis of this obligation?

3.2 Special protection of POWs

This paragraph sets out which persons receive POW-status when captured and what the subsequent protection entails.

3.2.1 Status

Any combatant122 who falls into the power of an adverse party to an international armed conflict receives the status of POW.123 In addition, there are groups of people who are not combatants but who are nevertheless entitled to POW-status. These include persons who accompany the armed forces and crewmembers of the merchant marine and civil aircraft who do not benefit by a more favourable treatment under international law.124

122_{See Chapter 1.2.3.}

123_{GC III, Article 4(A)(1)(2)(3)(6); AP I, Article 43(1)(2) and 44(1).} 124_{GC III, Article 4(A)(4) and 4(A)(5).}

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3.2.2 Protection under GC III

POWs enjoy special protection under the GC III, which provides for a wide range of rights related to their treatment. Most important with regard to the possible inclusion of POWs in the proportionality assessment are Articles 13 and 14.

Article 13: humane treatment of prisoners

It is a fundamental rule that POWs must be treated humanely at all times. As a principal element, the detaining power has the obligation to protect the life and health of the POWs in its custody.125 Accordingly, it is prohibited to carry out any unlawful act or omission causing death or seriously endangering the health of a POW. This can be interpreted as a prohibition on direct attacks on POWs.

In the ICRC’s commentary to GC III it is stated that “wilful killing” is clearly prohibited.126

However, it continues by stating that “cases in which prisoners of war are killed as a result of acts of war – for example the bombardment of a hospital – are perhaps in a different category; the question is left open.127 It hereby refers to the issue of proportionality but does not yet provide an answer. Since the ICRC is updating all its Commentaries, perhaps the new Commentary on GC III will discuss the matter further.

Article 14: respect for the person of prisoners

POWs are entitled to respect of their person and their honour. This includes respect for physical integrity, which generally means that it is prohibited to kill, wound or endanger POWs.128 This is defined as a positive obligation on the parties to the conflict in Article 13.

125_{Jean Pictet ed., Geneva Convention (III) Relative to the Treatment of Prisoners of War: Commentary (1960)}

(ICRC Commentary of 1960 on GC III), 140.

126_{Idem, 626.} 127_{Idem, 627.} 128_{Idem, 143.}

Prisoners of war and the proportionality assessment under IHL

Prisoners of war

and the proportionality assessment

under international humanitarian law

By Chantal de Jong

July

18

Abstract

Table of Contents

Table of Abbreviations

Table of International Instruments

Introduction

Chapter 1. The proportionality assessment under IHL

Chapter 2. Protected military personnel

and the proportionality assessment

Chapter 3. Prisoners of war

and the proportionality assessment