Civilian protection and the use of explosive weapons in populated areas : Could the application of Human Rights Law solve the ambiguity of International Humanitarian Law?

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UNIVERSITY OF AMSTERDAM LAW SCHOOL

Civilian protection and the use of explosive weapons in populated areas

Could the application of Human Rights Law solve the ambiguity of International Humanitarian Law?

Submitted by: Bianca Panaccione Student Number: 11118741

LLM International and European Law: Public International Law Supervisor: Dr. Louwrens Kiestra

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The use of explosive weapons in populated areas is one of the most controversial issues in the international scene. When used in populated areas explosive weapons cause great pattern of harm to civilians, which represent 90% of causalities. The aim of this thesis is to evaluate the implementation of the existing international humanitarian rules. Throughout the analysis of the most relevant case law and some divergent practices, it will be shown how there is not a common understanding of the legal standards concerning the issue of the use of explosive weapons with wide area effects. To this extent, the discussion will exclude direct attacks against civilians, which are clearly unlawful under IHL, and will be rather focused on the humanitarian impact of the use of explosive weapons in attacks against military objectives located in populated areas. After a brief analysis of the relationship between International Humanitarian Law and Human Rights Law, this thesis illustrates the way in which human rights are affected by the use of weapons with wide are effects. It argues that a human rights perspective applied to the use of explosive weapons in populated areas could benefit victims of explosive violence and provide for a clearer understanding of obligations deriving from IHL. Indeed regional and international human rights mechanisms could offer judicial and quasi-judicial remedies to aid victims in the realisation of their rights.

As a matter of methodology, a descriptive approach will be used in the first two Chapters of the thesis, by examining the law and jurisprudence of international tribunals on the topic. On the other hand, the third Chapter will have a normative approach, exploring the benefits that the introduction of a human rights approach could bring to the protection of civilians from the use of explosive violence.

Introduction

It is undeniable that the use of explosive weapons in populated areas has become one of the most controversial issues in the international scene.1_{Above all, it is one of the major causes of people}

displacement and, consequently, of the refugee crisis that the world is facing today.2

1 ICRC, “Report on International humanitarian law and the challenges of contemporary armed conflict”, available at

https://www.icrc.org/en/document/international-humanitarian-law-and-challenges-contemporary-armed-conflicts, accessed January 2016, pp. 47-53.

2 United Nations Security Council, “Report of the Secretary-General on the protection of civilians in armed conflict”, UN doc. S/2015/453, 18 June 2015, paragraph 31.

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As pointed out in a recent study, when used in populated areas, explosive weapons such as manufactured ordnance like mortars, rockets and air-dropped bombs, as well as improvised explosive devices, cause great patterns of harm to civilians, which represent 90% of casualties.3

Since 2009, the widespread use of explosive weapons has been included by the United Nations Secretary General among the core challenges to the civilian protection in armed conflicts.4

Moreover, from a geographical perspective, some countries are more affected than others by the consequences of explosive violence.5

As clearly pointed out during the International Committee of the Red Cross (ICRC) expert meeting, “ Although the use of explosive weapons in populated areas is not expressly regulated by international humanitarian law (IHL), it is not disputed that any such use must comply with IHL rules, in particular the prohibition of direct attacks at civilians or civilian objects, the prohibition of indiscriminate attacks, the rule of proportionality in attack and the obligation to take all feasible precautions in attack. However, there are divergent views on whether existing IHL rules sufficiently regulate the use of explosive weapons in populated areas or whether there is a need to clarify their interpretation or to develop new standards or rules. Based on the effects of explosive weapons in populated areas being witnessed today, there are serious questions regarding how parties to armed conflicts are interpreting and applying the relevant IHL rules.”.6

The discussion in this thesis will exclude direct attacks against civilians, which are clearly unlawful under IHL, and will be rather focused on the humanitarian impact of the use of explosive weapons in attacks against military objectives located in populated areas.

With regard to analyzing the problems concerning the protection of civilians in time of war, Cassese has identified four different principles on the matter.7_{Firstly, the principle whereby civilians must not be the}

object of deliberate attacks. The prohibition of indiscriminate attacks derives from the principle of

3 Action on Armed Violence (AOAV), “2011-2014: The Impact of Explosive Weapons,”, accessed December 2015, https://aoav.org.uk/wp-content/uploads/2015/06/AOAV-Four-years-of-explosive-violence-2011-14-FINAL1.pdf.

4 See in particular “Report of the Secretary-General on the protection of civilians in armed conflict”, UN doc. S/2009/277, 29 May 2009 and UN doc. S/2015/453, 18 June 2015.

5 Brehm M., “The human cost of bombing cities – how the international debate on explosive weapons overlook human rights”, SUR International Journal on Human Rights, December 2015, accessed January 2016, http://sur.conectas.org/en/issue-22/human-cost-bombing-cities/.

6 ICRC, “Expert Meeting. Explosive Weapons in Populated Areas: Humanitarian, Legal, Technical and Military Aspects”, available at https://www.icrc.org/en/download/file/10297/icrc-explosive-wepons-report.pdf, accessed December 2015.

7 Cassese A., “Current Trends in the Development of the Law of Armed Conflict”, in The Human Dimension of International Law: Selected Papers of Antonio Cassese, ed. A. Cassese et al., Oxford University Press 2008, pp. 21-23.

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distinction8_{, which requires parties to armed conflicts to distinguish between civilians and combatants at all}

times and to direct their attacks only against combatants.

The second principle states that the civilian population “shall not be the object of attack”.9_{Consequently,}

only military objectives can be hit. The third and fourth principle respectively provide that whenever military objectives are attacked, precautions must be taken for the protection of civilians10_{and, that any}

incidental damage caused to civilians or to civilian objects by hitting a military objective must not be excessive in relation to the military advantage achieved by the attack.11

However, as stressed in a recent expert meeting on this issue, as regards to the requirement of proportionality and precaution in the attack “the divergent practices and views of militaries regarding what is legally acceptable or not in populated areas clearly show that the law is ambiguous”.12

The first part of this thesis, will assess how the aforementioned legal rules are implemented and whether they constitute an adequate basis for a solution to the humanitarian problems caused by explosive weapons. Moreover, case law, or rather the divergent practices regarding what is lawful when it comes to the use of explosive weapons in populated areas clearly show that the law is ambiguous. To this extent I will examine some recent and controversial situations as well as the international jurisprudence on the matter.13

Particularly relevant in this analysis will be the jurisprudence of the International Criminal Tribunal for the former Yugoslavia. The examination of these judgments will clearly show that there is not a common understanding of the legal standards concerning the issue of the use of explosive force in populated areas. The second part of this work will deal with the possible solutions to this issue and, in particular to what extent the applicability of international human rights law (IHRL) in relation to explosive weapons could benefit to the ongoing debate.

8 ICRC, Rule 1, Customary International Law, accessed December 2015, https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter1_rule1; see also J. Borrie and M. Brehm, “Enhancing civilian protection from use of explosive weapons in populated areas: building a policy and research agenda”, International Review of the Red Cross,

https://www.icrc.org/eng/assets/files/review/2011/irrc-883-borrie-brehm.pdf, accessed December 2015.

9 Article 51, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.

10 ICRC, Rule 15, Customary International Law, accessed December 2015, https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter5_rule15.

11 ICRC, Rule 14, Customary International Law, accessed December 2015, https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter4_rule14.

12 ICRC, “Expert Meeting. Explosive Weapons in Populated Areas: Humanitarian, Legal, Technical and Military Aspects”, accessed December 2015, https://www.icrc.org/en/download/file/10297/icrc-explosive-wepons-report.pdf..

13 As pointed out in the Report of the Secretary-General on the protection of civilians in armed conflict, S/2015/453, 18 June 2015, , the escalation of the conflict in Yemen in 2015 and in the Syrian Arab Republic, as well as the hostilities in 2014 in the Occupied Palestinian Territories, have resulted in high civilian death and displacement deriving from the wide use of explosive weapons in populated areas.

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As underlined by M. Brehm “the human rights dimension of explosive violence has not received focused attention”.14_{International human rights law and international humanitarian law are two distinct bodies of}

law, however, since international human rights law does not cease to apply in situations of armed conflict, there are numerous points of contact between the two branches, which overlap substantially in practice.15

The relationship between the two bodies of law and the recognition that human rights law also applies in situations of armed conflict has been further developed by the jurisprudence.16

Thus, the co-application regarding the law of armed conflict and the human rights law may serve as a legal framework in those situations whereby IHL does not clearly regulate the protection of individuals from explosive violence, especially in the case of armed violence which is not directed to civilians, yet it causes their involvement as “collateral damage”.

Moreover the application of a human rights perspective to the use of explosive weapons in populated areas could benefit victims of explosive violence and provide for a clearer understanding of obligations deriving from IHL.17_{To this extent, national, regional and international human rights mechanisms could offer judicial}

and quasi-judicial remedies to aid victims in the realisation of their rights.18

With regards to the definition of “explosive weapons”, it is worth noting that there is not an authoritative definition of the term.19_{The United Nations Secretary-General’s report of 2012, regarding the protection of}

civilians in armed conflict, provides an illustrative list: “Explosive weapons include artillery shells, missile and rocket warheads, mortars, aircraft bombs, grenades and improvised explosive devices”.20

In a Report released in 2009, the civil society organisation Landmine Action provided an exhaustive list of explosive weapons:21

I. Air dropped bombs: explosive weapons from aircraft

14 Brehm M., 'The human cost of bombing cities: How the international debate on explosive weapons overlooks human rights',

Sur International Journal on Human Rights, Volume 12, Number 22, December 2015.

15 Cordula Droege, “The Interplay Between International Humanitarian Law And International Human Rights Law In Situations of Armed Conflict”, in Israel Law Review, Volume 40, Number 2, 2007, pp. 310-355.

16 Particularly noteworthy is the International Court of Justice’s statement in the Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory: “More generally, the Court considers that the protection offered

by human rights conventions does not cease in case of armed conflict...”.

17 F. Hampson and D. Murray, “‘Operationalising’ the Relationship Between the Law of Armed Conflict and International Human Rights Law”, ESIL- International Human Rights Law Symposium, accessed February 2016, http://www.ejiltalk.org/esil-

international-human-rights-law-symposium-operationalising-the-relationship-between-the-law-of-armed-conflict-and-international-human-rights-law/.

18 UNSC, “Report of the Secretary-General on the protection of civilians in armed conflict”, S/2015/453, 18 June 2015.

19 Brehm M., “Protecting Civilians from the Effect of Explosive Weapons. An analysis of Legal and Policy Standards”, available at http://www.unidir.org/files/publications/pdfs/protecting-civilians-from-the-effects-of explosive-weapons-en-293.pdf, accessed June 2016, p. 11.

20 UNSC, “Report of the Secretary-General on the protection of civilians in armed conflict”, S/2015/453, 18 June 2015.

21 Landmine Action, “Explosive Violence: the Problem of Explosive Weapons”, available at http://www.inew.org/site/wp-content/uploads/2011/06/Explosive-violence.pdf, accessed June 2016, pp. 19-20.

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II. Booby traps: Victim-activated explosive weapons designed or improvised to detonate when an apparently harmless act is performed

III. Demolition charges: Blocks of explosive for engineering or sabotage use

IV. Grenades: Relatively small ‘land-service’ explosive weapons for use against personnel or vehicles, which can be either thrown or fired from weapons

V. Improvised Explosive Devices (IEDs): Explosive weapons (of any class, e.g. grenade, bomb, rocket) that are not mass-produced. However, IEDs may use mass produced explosives or explosive ordnance as a component

VI. Landmines: Generally victim activated explosive weapons

VII. Missiles: missiles have a propulsion system and a guidance system

VIII. Mortar bombs: mortar bombs are indirect fire weapons which are normally (but not always) muzzle-loaded

IX. Projectiles: Explosive projectiles are fired through a barrel by the ignition of a propellant charge X. Rockets: Rockets are unguided munitions with an integral propulsion system

As a matter of methodology, a descriptive approach will be used in the first two Chapters of the thesis, as the law and jurisprudence of international tribunals on the topic will be discussed. The third Chapter, however, will have a normative approach, as it explore the benefits that the introduction of a human rights approach could bring to the protection of civilians from the use of explosive violence.

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CHAPTER I

The Regulation of Explosive Weapons in International Humanitarian Law

1.1. The General Protection of Civilians in existing IHL

This chapter will briefly analyze the rules related to the protection of civilians under the existing IHL in order to give a general assessment on the issue of the use of explosive weapons in populated areas. To this extent the analysis will be focused on the principles of proportionality, precaution and necessity as well as on the prohibition of indiscriminate attacks.

From historical perspective, the beginning of the twentieth Century, together with the possibility of aircraft use for war purposes, represented a turning point in the development of new means and methods of warfare and, consequently for the birth of modern international humanitarian law.22

Many legal texts in this area contained references relative to “bombardment” or “bombing”, thus reflecting the awareness of humanitarian issues raised by new technologies.23

However the first complete set of rules concerning the methods and means of warfare and the protection of the civilian population from the effects of hostilities is to be found in the 1907 Hague Conventions.24

Moreover, Article 25 of the 1907 Hague Regulations stated that ‘attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited’.25_{Despite the fact that}

the Second World War caused thousands of civilian deaths, the 1949 Geneva Convention was however more

22 Borrie J and Brehm M., “Enhancing civilian protection from use of explosive weapons in populated areas: building a policy and research agenda”, International Review of the Red Cross, Volume 93, Number 883, 2011, pp. 809-836.

23 For example many sections of the 1874 Brussels Declaration and the 1880 Oxford Manual contained references to the regulation of bombardments; see Brehm M., “Protecting Civilians from the Effects of Explosive Weapons. An Analysis of International Legal and Policy Standards”, UNIDIR (2012), available at http://www.unidir.org/files/publications/pdfs/protecting-civilians-from-the-effects-of-explosive-weapons-en-293.pdf, pp. 75-77, accessed April 2016.

24 Bothe M. et al., “New Rules for Victims of Armed Conflicts : Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949”, 2nd_{edition, Brill (2013), p. 315.}

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focused on safeguarding “protected persons”.26_{Thus, the need to revise and clarify the existing provisions}

concerning the protection of civilians was underlined in several occasions.27

Many of the provisions contained in the ICRC Draft Rules were eventually included in Part IV of the “Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977” (hereinafter AP I) with the aim to strengthen and clarify the legal principles related to the protection of the civilian population . It is worthy to note that the provisions of Part IV do not contain an absolute preclusion of attacks that may cause civilian casualties,28_{but Articles 48, 51, 52 and 57 do require that an armed attack shall always be directed towards a}

military objective.29

With regards to the meaning of the term “military objective”, as used in Protocol I, it is “limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”.30_{Moreover, as pointed out by Bothe in his Commentary to the Additional}

Protocols,31_{the term military objective is also referred to “combatants of the adverse Party, and also}

civilians while they are engaged directly in hostilities, as well as objects making an effective contribution to the enemy’s military action whose destruction, neutralization or capture offers a definite military advantage”.32

Turning to the general rules concerning the protection of civilians, as drafted in the two Additional Protocols to the Geneva Conventions, two groups of provisions could be identified: (a) the rules relating to the protection of civilians or individual persons who are under the control of the another party to the conflict

27 See, for example, the ICRC Draft Rules for the Limitation of the Dangers incurred by the Civilian Population in Time of War, drew up in 1956 and the United Nations General Assembly Resolution 2444 (XXIII)(1968) “Respect for Human Rights in Armed Conflict” in which the Assembly stressed the need to provide for a new set of IHL rules to ensure a better protection to civilian population.

28 Article 50 AP I defines “civilian” and “civilian population”: “1. A civilian is any person who does not belong to one of the

categories of persons referred to in Article 4 A (1), (2), (3) and (6) of the Third Convention and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian. 2.The civilian population comprises all persons who are civilians. 3. The presence within the civilian population of individuals who do not come within the definition of civilians does not deprive the population of its civilian character.”.

29 Bothe M. et al., “New Rules for Victims of Armed Conflicts : Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949”, 2nd_{edition, Brill (2013).}

30 Art 52(2), AP I.

32 Article 52(2), Protocol I. Moreover the definition of military objective was included in the Study on customary international humanitarian law conducted by the International Committee of the Red Cross and is considered to be a norm of Customary International law applicable in all types of conflict; for a deeper analysis see ICRC, Customary IHL, rule 8: Definition of Military Objectives, available at https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule8, accessed April 2016.

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from the possible abuse of powers of the latter; and (b) the rules strictly confined to the conduct of military operations, providing protection of the civilian population against direct effects of military operations.33

For the purpose of the present work, only the rules related to the second group of civilians will be examined. With regards to the type of conflict to which these rules are addressed, the core provision of the AP I concerning the protection of civilians, such as the prohibition of indiscriminate attacks and the rules of proportionality and precaution in attack are considered to be customary international law34_{and, thus apply}

both to international and non-international armed conflicts.35

One of the basic rules when it comes to the protection of civilians in the conduct of hostilities is provided by article 48 AP I.36_{The parties to an armed conflict shall always distinguish between the civilian population}

and combatants and between civilian objects and military objectives and they shall direct their operations only against military objectives. The statements made in Article 48 enshrine one of the most fundamental and undisputed principles of IHL: the basic principle of distinction.37

1.2. The Prohibition of Indiscriminate Attacks

Article 51 AP I codifies for the first time one of the most important principles of international law concerning the protection of the civilian population.38_{It explicitly states that the civilian population and}

individual civilians shall be excluded from the hostilities and shall enjoy general protection from those consequences. Besides this general provision, the article clarifies, in a rather detailed manner, some rules inferred from that principle such as the prohibition against indiscriminate attacks and a definition of such attacks.39

With regards to the second paragraph of the article, stating that attacks directed against the civilian population as such as well as against individual civilians are prohibited, clearly refers to the wording of the

33Gasser H.P. and Dormann K., “Protection of the Civilian Population”, The Handbook of International Humanitarian Law, Fleck D. Ed., 3rd_{edition, Oxford (2013), p. 231.}

34 See, in particular, Rules 11, 14 and 15 of the Study on customary international humanitarian law conducted by the International Committee of the Red Cross, available at https://www.icrc.org/customary-ihl/eng/docs/v1, accessed April 2016 and Crawford E., "Blurring the Lines between International and Non-International Armed Conflicts - The Evolution of Customary International Law Applicable in Internal Armed Conflicts.", Australian International Law Journal, Volume 15, Number 1, 2008, pp.29-54.

35 As a consequence, the term armed conflict will be used without distinction between International and non-international armed conflicts; for a definition of international and non-international armed conflicts see D. Fleck Ed., “The Handbook of International Humanitarian Law”, 3rd_{edition, Oxford (2013), pp. 43-53.}

36 Art 48 AP I : “In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives”.

37 Gasser H.P. and Dormann K., “Protection of the Civilian Population”, The Handbook of International Humanitarian Law, Fleck D. Ed., 3rd_{edition, Oxford (2013), p. 231.}

38 ICRC, “Commentary of 1987 to Protocol I”, Jean Pictet ed., available at https://www.icrc.org/applic/ihl/ihl.nsf/Comment.xsp? action=openDocument&documentId=5E5142B6BA102B45C12563CD00434741, accessed June 2016, p. 615.

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aforementioned UN General Assembly Resolution 2444 (XXIII).40_{It is worthy to note that the terms}

“directed” and “as such” implies that, even though an attack should never be direct against civilians, offensive operations directed against combatants and other military objectives could cause civilian casualties with respect to civilians in or near such military objectives.41

Article 51(4) API is connected to the second paragraph of art 51: while the latter lays down the general prohibition of indiscriminate attack, the former clarifies the practical content of the general provision.42

In order to pursue this aim, three different categories of attacks have been introduced:

Subparagraph a) refers to attacks which are not directed at a specific military objective, whereby the indiscriminate consequences derive from the way in which the operation is carried out and the manner in which the weapon is used. As a consequence, blind firing towards controlled territory on behalf of the adversary is clearly forbidden, meaning that firing without reliable information regarding that objective, and furthermore, the absence of a precise idea relating to the nature of that objective, has now been strictly outlawed.43_{Moreover, as in World War II, the practice of releasing bombs over enemy territory, particularly}

over settlements and also after missing the original objective, is forbidden.44

Subparagraph b) concerns those attacks which employ methods or means of combat45_{which cannot be}

directed exactly to the specific military objective; this second category includes those weapons that are so rudimentary or not accurate enough due to the fact that they are incapable of striking a precise military target. Night attacks and lack of adequate targeting equipment, together with bombing raids from extremely high altitudes where target accuracy becomes unacceptably low, fall into this category.46

The third category covers those attacks which employ a method or means of combat in which the effects cannot be limited as required by international humanitarian law . This provision is particularly linked to the use of weapons with uncontrollable effects such as biological agents.47

40 UN General Assembly, “Respect for human rights in armed conflicts”, available at https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/244/04/IMG/NR024404.pdf?OpenElement, accessed March 2016 .

41 Bothe M. et al., “New Rules for Victims of Armed Conflicts : Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949”, 2nd_{edition, Brill (2013), , p. 341, Paragraph 2.3.}

42 See the Commentary of 1987 to Protocol I, available at

https://www.icrc.org/applic/ihl/ihl.nsf/1a13044f3bbb5b8ec12563fb0066f226/5e5142b6ba102b45c12563cd00434741, accessed April 2016. The Commentary stresses the importance of this provision since “it confirms the unlawful character of certain

regrettable practices during the Second World War and subsequent armed conflicts. Far too often the purpose of attacks was to destroy all life in a particular area or to raze a town to the ground without this resulting, in most cases, in any substantial military advantages”.

43 Oeter s., “Methods and Means of Combat”, The Handbook of International Humanitarian Law, Fleck D. Ed., 3rd_edition,

Oxford (2013), p. 192. 44 Ibidem.

45 According to the 1987 Commentary cited above, “the term "means of combat" or "means of warfare" generally refers to the

weapons being used, while the expression "methods of combat" generally refers to the way in which such weapons are used”.

46 Oeter s., “Methods and Means of Combat”, The Handbook of International Humanitarian Law, Fleck D. Ed., 3rd_edition,

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Moreover, as pointed out by Gisel48_{, the travaux préparatoires of the 1977 First Additional Protocol}

“indicate that the prohibition of indiscriminate attacks is not limited to means or methods of warfare that are “inherently” indiscriminate”. Consequently, with regards to the topic of the present thesis, “Warfare in populated areas is certainly a situation which might render indiscriminate particular means or methods that could be lawfully used in other situations. So asserting that an attack with a particular type of weapons risks amounting to an indiscriminate attack when it is carried out in densely populated areas does not mean that the same weapon cannot be lawfully used in other circumstances, in open battlefield in particular.”.49

The aforementioned distinction is further specified in Paragraph 5 (Art. 51 AP I), which provides two examples of the prohibition of indiscriminate attack.50_{The most noteworthy feature}51_{of this article is the}

codification in subparagraph 5 (b) of the principle of proportionality related to civilian causalities, that will be examined in the next paragraph.

1.3. Proportionality and Precaution in Attack

The principle of proportionality is inherent in another two essential components of IHL: the principles of necessity and the principle of humanity.52_{The first permits the destruction of values which are necessary to}

accomplish a military advantage and is not prohibited by the law of armed conflict. On the other hand, the principle of humanity imposes a limit to the military necessity, by prohibiting attacks that are not necessary and proportionate and represents the limit to those which are not so relevant and proportionate.53_Moreover,

the rule reinforces the provision of Article 35, AP I which prohibits the employment of weapons which cause superfluous injury or unnecessary suffering.54

Even though there are no equivalent provision to Article 51(5) of AP I concerning the law applicable to non-international armed conflicts, the ICRC Study on Customary International Humanitarian Law (‘The CIHL

47 Laurent G., “The use of explosive weapons in densely populated areas and the prohibition of indiscriminate attacks”, in “Conduct of Hostilities: the Practice, the Law and the Future”, Institute of International Humanitarian Law, 2015, p. 101, see also Schmitt M. N., ‘War, Technology and the Law of Armed Conflict’, in A. M. Helm (ed.), The Law of War in the 21st_Century: Weaponry and the Use of Force, Volume 82, International Law Studies, 2006, p. 140.

48 Laurent G., “The use of explosive weapons in densely populated areas and the prohibition of indiscriminate attacks ”, in “Conduct of Hostilities: the Practice, the Law and the Future”, Institute of International Humanitarian Law, 2015, pp. 103-104. 49 Ibidem.

50Art. 51 (5) AP I: “Among others, the following types of attacks are to be considered as indiscriminate: (a) an attack by bombardment by any methods or means which treats as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects; and (b) an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.”.

51 Clarke B., “Proportionality in Armed Conflicts: a Principle in Need of Clarification?”, Journal of International Humanitarian Legal Studies, Volume 3, Number 1, 2012, p. 77.

52 Bothe M. et al., “New Rules for Victims of Armed Conflicts : Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949”, 2nd_{edition, Brill (2013) , p. 350.}

53Ibidem.

54 Schmitt M.N., “Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance”, Virginia Journal of International Law, Volume 50, Number 4, Summer 2010, pp. 795-839.

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Study’)55_{has concluded that the proportionality rule applies to both international and non-international}

armed conflicts.56_{Rule 14 reiterates the language of Article 51(5).}57

As already mentioned, attacks aimed at striking the civilian population as such or individual civilians are prohibited. However this does not mean that all the civilian causalities amount to a violation of the international humanitarian law rules. Article 51(5)(b) AP I assesses the principle of proportionality to the expected collateral damage: an attack is prohibited when it “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated’. The way in which the article is formulated clearly expresses the necessity to balance the aforementioned principles of military necessity and humanity.

As pointed out by Clarke58_{, this approach requires a comparison between the anticipated military advantages}

and the anticipated civilian losses: consequently the military officers in charge of the military operation have an obligation to bear in mind these rules when carrying out an attack that may affect civilians and civilian objects.

The same principle can be found in Article 57 AP I, that, in codifying the pre-existing customary rule related to ‘Precautions in attack’, imposes on those who are in charge of a military operation to take constant care to spare the civilian population, civilians and civilian objects by adopting all the feasible measures.59

The obligation laid down in Article 57 (2)(a)(i) AP I imposes on those who plan or decide an attack to do all that is feasible in order to verify that the objectives to be attacked are neither civilians nor civilian objects. On implementing this obligation, the military commanders are obliged to collect all the possible intelligence information. Thus, the provision does not impose an obligation of result but rather it codifies the necessity, in case of doubt, of collecting additional information, before launching an attack.60

55 ICRC, Study on Customary International Humanitarian Law, available at https://www.icrc.org/customary-ihl/eng/docs/home, accessed April 2016.

56 Clarke B., “Proportionality in Armed Conflict: a Principle in Need of Clarification?”, International Humanitarian Legal Studies, Volume 3, 2012, pp. 73-123; see also Henckaerts J.M., ‘Study of Customary International Law: A Contribution to the Understanding of Respect for the Rule of Law in Armed Conflict’, International Review of the Red Cross, Volume 87 Number 857, 2005, 175-212.

57 Rule 14 affirms that: “Launching an attack which may be expected to cause incidental loss of civilian life, injury to

civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated, is prohibited.”.

58 Clarke B., “Proportionality in Armed Conflict: a Principle in Need of Clarification?”, International Humanitarian Legal Studies, Volume 3, 2012, pp. 77-78.

59 Gasser H.P. and Dormann K., “Protection of the Civilian Population”, The Handbook of International Humanitarian Law, Fleck D. Ed., 3rd_{edition, Oxford 2013, pp. 243-244.}

60 Quèguiner J., “Precautions under the law governing the conduct of hostilities”, International Review of the Red Cross, Volume 88, Number 864, December 2006, p. 798.

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Moreover art 57 (2)(a)(ii) AP I provides that, when launching an attack on a military objective, all feasible precautions shall be taken to avoid, or at least to minimize, incidental loss of civilian life, injury to civilians, and damage to civilian objects.

This rule is again directed to those who are in charge of the attack and underlines their obligation to take all the possible measures to protect civilians and civilian objects, as well as other groups of persons entitled to respect and protect. It is important to notice that this precautionary measure is not limited to the obligation set out in article 57 (2)(a)(ii) AP I to refrain from deciding to launch an attack which may be expected to cause excessive incidental civilian casualties or damages but goes beyond it, even when the attack would comply with the rules of proportionality, additional feasible61_{precautions must be taken to reduce or prevent}

incidental civilian damage.62

However, those in charge of the attack, shall refrain from it if it is likely to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.63 _{Moreover, if in the course of a military}

operation it appears that the attack will not comply with the rules of proportionality, the operation shall be cancelled or, at least suspended.64

As pointed out by Quèguiner65_{, “}_{this provision must be interpreted as imposing a special and personal}

obligation on all members of the armed forces to cancel or suspend an attack when they acquire, in the course of an operation, information that was not available at the planning stage”.

Civilians must be warned in advance of attacks that may affect them, unless circumstances do not permit (Article 57 (2)(c) AP I).

The general obligation regarding all the precautionary measures to spare the civilian population is completed by article 58 AP I which deals with the precautions against the effects of an attack. In order to achieve this aim, belligerents shall (a) remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives; (b) avoid positioning military objectives within or near densely populated areas; (c) take other necessary precautions to protect the civilian population, individual

61 With regards to the meaning of ‘feasible’ see the definition given in the Handbook of International Humanitarian law (Gasser H.P. and Dormann K., “Protection of the Civilian Population”, The Handbook of International Humanitarian Law, Fleck D. Ed., 3rd_{edition, Oxford, 2013, p. 247: “‘that which is practicable or practically possible, taking into account all circumstances ruling at}

the time including humanitarian and military considerations’. According to this interpretation, it is also possible in a defensive war to find an acceptable compromise between military arguments and humanitarian considerations, especially since in this case it is a question of protecting the civilian population of the defending party”.

62 Gasser H.P. and Dormann K., “Protection of the Civilian Population”, The Handbook of International Humanitarian Law, Fleck D. Ed., 3rd_{edition, Oxford (2013), p. 245.}

63 Article 57(2)(a)(iii) AP I. In particular, with regards to the meaning of “military advantage”, it should be interpreted in light of article 51(5)(b) as any advantage ‘anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack’.

64 Article 57 (2)(b) AP I.

65 Quèguiner J., “Precautions under the law governing the conduct of hostilities”, International Review of the Red Cross, Volume 88, Number 864, December 2006, p. 803.

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civilians and civilian objects under their control against the dangers arising from military operations. These measures, directly inferred from the principle of distinction, shall be applied to the maximum extent feasible.66

This brief overview demonstrates the way in which the IHL rules lack information regarding expected care levels, together with the required certainty and precaution levels. These rules do not provide detailed guidance concerning the risk of civilian harm which should be assessed in accordance with particular weapon technologies or particular settings where civilians may be exposed to harm.67_{Furthermore IHL rules}

do not provide an indication on the way in which acceptable limits of risk ought to be set out.68

66 Quèguiner J., “Precautions under the law governing the conduct of hostilities”, International Review of the Red Cross, Volume 88, Number 864, December 2006 , p. 820.

67 Brehm M., “International humanitarian law and the protection of civilians from the effects of explosive weapons”, in C. Harvey, J. Summers, N. D. White (Eds.), Contemporary Challenges to the Laws of War: Essays in Honour of Professor Peter Rowe, Cambridge University Press, October 2014, p.122.

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CHAPTER II

The practical application of IHL

2.1. The international jurisprudence and the legality of explosive weapons in populated areas

The present paragraph will examine how the rules of IHL discussed in the previous chapter are applied in practice in light of some important cases before the International Criminal Tribunal for the former Yugoslavia (hereinafter ICTY). Through the examination of these cases, a better understanding of the practices related to the use of explosive weapons in populated areas will be possible. Moreover the judgments can provide a description of what has been considered legal or illegal in the specific circumstances of an armed conflict.

In the Martić69_{case, the ICTY considered the one-km dispersion error of the M-87 Orkan (a specific kind of}

multiple-barrel rocket launcher (MBRL)) as an indiscriminate weapon.70_{The Trial Chamber, by examining}

the nature of the launcher, concluded that the device in question “by virtue of its characteristics and the firing range in this specific instance, was incapable of hitting specific targets”.71_{Thus, the M-87 Orkan}72_was

classified as an indiscriminate weapon, the use of which in densely populated areas would result in causing a severe number of causalities.73

However, some scholars underlined the ambiguity of this judgment: in particular it is not clear whether the M-87 Orkan was an indiscriminate weapon per se, or only in specific circumstances, such as their use in populated areas or the distance from where they were fired.74_{This interpretation was later confirmed in the}

Appeal judgment, where the Court affirmed that “The Trial Chamber concluded that the M-87 Orkan was used as an indiscriminate weapon.”.75

69 ICTY, Trial Chamber, Prosecutor v. Martic, Case No. IT-95-11-T, 12 June 2007. 70 The case deals with the shelling of the city of Zagreb on 2 and 3 May 1995.

71 ICTY, Trial Chamber, Prosecutor v. Martic, Case No. IT-95-11-T, 12 June 2007, paragraph 463.

72 The explosive weapon under examination was a rocket launcher fitted, in this particular case, with cluster munitions. 73 ICTY, Trial Chamber, Prosecutor v. Martic, Case No. IT-95-11-T, 12 June 2007, paragraph 469.

74 Brehm M., “Unacceptable Risk: Use of explosive weapons in populated areas through the lens of three cases before the ICTY", available at http://www.inew.org/news/pax-explosive-weapons-pose-unacceptable-risk-to-civilians, accessed May 2016, p. 57. 75 ICTY, Appeals Chamber, Prosecutor v. Martic, Case No. IT-95-11-A, 8 October 2008, paragraph 247.

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The degree of accuracy of MBRLs was also discussed in the Galic case76_{, which dealt with a number of}

attacks on Sarajevo, including a shelling on the Markale market. In this case the Tribunal did not examine in detail the different kinds of weapons used, but it analysed the general effect of the attacks on the city. The Majority found that a campaign of sniping and shelling was conducted against the civilian population and this conclusion was reinforced by the analysis of the general pattern of shelling.77

This approach is in absolute contrast with the one taken by the Appeal Chamber in the Gotovina case78_,

where the general pattern of firing was not taken into consideration by the Court.79

The issues related to the use of MBRLs were again discussed in the abovementioned Gotovina Trial. The judgment in the Gotovina Trial was one of the most complex and discussed in the history of the ICTY.80

Many experts were heard during both the Trial Chamber and the Appeal process.81

The Trial Chamber found the attacks against the city of Knin unlawful and consequently Gotovina was judged guilty of war crimes.82_{However the Judgment was appealed and the evidence used by the Trial}

Chamber to prove the illegality of the attack were deemed not sufficient by the Appeal Chamber83_{, which}

lead to the acquittal of the accused.

Unlike the Galic case, the facts in the Gotovina Trial were not characterized as intentionally indiscriminate attacks on civilian populations. The Gotovina Trial Chamber found that those targets pre-selected by Gotovina were compatible with the location of military targets.84_{What made the Gotovina attacks unlawful}

was their inaccuracy: the Trial Chamber established that those artillery projectiles that impacted within a distance of 200 meters of a presumed military target must have been deliberately fired at that objective.85

Consequently, any shell lending outside of 200 meters radius was not fired at a military target and, thus, was an indiscriminate attack on civilians.

However, according to the Appeal Chamber, the Trial Chamber failed to demonstrate the link between the evidence received and the 200 meters standard86_{, and thus rejected it by a majority decision. The first}

noteworthy feature of this judgment is that the majority completely overlooked the principle of

76 ICTY, Trial Chamber, Prosecutor v. Galic, Case No. IT-98-29, 5 December 2003.

77 ICTY, Trial Chamber, Prosecutor v. Galic, Case No. IT-98-29, 5 December 2003, paragraph 597 and 591. 78 ICTY, Trial Chamber, Prosecutor v. Gotovina et al., Case No. IT-06-90-T, 15 April 2011.

79 Brehm M., “Unacceptable Risk: Use of explosive weapons in populated areas through the lens of three cases before the ICTY", available at http://www.inew.org/news/pax-explosive-weapons-pose-unacceptable-risk-to-civilians, accessed May 2016, p. 47. 80 Brehm M., “Unacceptable Risk: Use of explosive weapons in populated areas through the lens of three cases before the ICTY", available at http://www.inew.org/news/pax-explosive-weapons-pose-unacceptable-risk-to-civilians, accessed May 2016, pp. 60-61.

81 Ibidem.

82 ICTY, Trial Chamber, Prosecutor v. Gotovina et al., Case No. IT-06-90-T, 15 April 2011, paragraphs 2616-2617. 83 ICTY, Appeal Chamber, Prosecutor v. Gotovina et al., Case No. IT-06-90-A, 16 November 2012.

84 Vallentgoed D., “The Last Round? A Post-Gotovina Reassessment of the Legality of Using Artillery Against Built-up Areas”, Journal of Conflicts and Security Law, Volume 18, Number 1, 2013, p. 42.

85 ICTY, Trial Chamber, Prosecutor v. Gotovina et al., Case No. IT-06-90-T, 15 April 2011, Paragraph 1898. 86 ICTY, Appeal Chamber, Prosecutor v. Gotovina et al., Case No. IT-06-90-A, 16 November 2012, Paragraph 59.

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proportionality, distinction and necessity established in IHL.87_{As pointed out by Vallentgoed, it is}

impossible to establish whether the Gotovina’s acquittal “would have survived a proportionality analysis because one was not done”.88_{The rule of distinction was not examined as well as the issue related to the}

assessment of the military advantage against the civilian damage. The rejection of the 200 meters standard, the only basis for the unlawfulness of the attacks, lead the Appeal Chamber to conclude that, “absent an established range of error, the Appeals Chamber, cannot exclude the possibility that all of the impact sites considered in the Trial Judgment were the result of shelling aimed at targets that the Trial Chamber considered to be legitimate”.89

Moreover, as in the Galic and Martic cases, both the Cambers failed to conduct any analysis about the possibility to classify certain types of weapons as inherently indiscriminate when used in populated areas.

2.2 Selected case studies

After the analysis of the jurisprudence of the ICTY regarding the use of explosive weapons in populated areas, this paragraph will show how, with the absence of a precise legal framework in the use of explosive weapons in populated areas, there are serious questions on how the party to the conflicts are interpreting the rules provided by IHL. In particular, this section will analyze some of the military practices used by Israel in the Gaza Strip as well as the consequences derived from the use of explosive violence in Ukraine and Libya.

One example of military practice where the Israeli Defence Force (IDF) claims to act with attention to the protection of civilians, is the development of warnings to civilian population before the attacks. The obligation of giving effective advanced warning of attacks that may affect the civilian population is a well established principle of IHL.90_{These warnings include text messages and phone calls to civilians in}

buildings where an attack is expected together with leaflets launched from planes which warn civilians to leave an area or neighbourhood. However in the last years, non or low impact explosive on the target have been used. This practice, known as ‘roof knocking’, consists in giving warnings to the civilians residing in the Gaza Strip regarding the forthcoming shelling carried out by dropping light explosives or shooting warning missiles onto the rooftops of the targeted buildings.91_{This practice has been claimed to be one of}

the most effective means in avoiding civilian causalities.92

87 Vallentgoed D., “The Last Round? A Post-Gotovina Reassessment of the Legality of Using Artillery Against Built-up Areas”, Journal of Conflicts and Security Law, Volume 18 Number 1, 2013, p. 49.

88 Ibidem.

89 ICTY, Appeal Chamber, Prosecutor v. Gotovina et al., Case No. IT-06-90-A, 16 November 2012, Paragraph 65.

90 ICRC, Customary International Law, “Rule 20. Advance warning”, available at https://www.icrc.org/customary-ihl/eng/docs/v1_cha_chapter5_rule20, accessed May 2016.

91 Jeronen M., “Death Comes Knocking on the Roof: Thanatopolitics of Ethical Killings during Operation Protective Edge in Gaza”, Antipode, Volume 48, Number 2, 2016, p. 337.

92 Dill J., “Israel use of law and warnings in Gaza”, available at http://opiniojuris.org/2014/07/30/guest-post-israels-use-law-warnings-gaza/, accessed May 2016.

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However, the roof-knocking tactic has been strongly criticized by human rights advocates.93_The

effectiveness of these kind of warnings has been also questioned by the Human Rights Council Independent Commission of Inquiry.94_{Indeed this technique may not give enough time to people between the warning}

and the attack. Moreover, these are still bombs95_{, which are likely to cause civilian causalities. As pointed}

out in a Report, even though the bombs used in the warnings may only contain a small amount of explosive when compared to the standard munitions, they fall with significant force from great heights and project explosive energy as they land.96

Analysing the warnings from a legal perspective, the final paragraph of Article 57 API clearly states that the legal obligations provided for in the Convention cannot be affected by the use of precautionary measures. This article clearly states that “no provision in this article may be construed as authorizing any attacks against the civilian population, civilians or civilian objects”. One should always bear in mind that, under the principle of distinction, an object can be considered as a military target only when ‘by its nature, location, purpose or use, it makes an effective contribution to military action’ and its use ‘in the circumstances ruling at that time offers a definite military advantage’.97_{Consequently, civilian residences do not become military}

objectives only in virtue of the circumstance that their inhabitants have been warned.98

The regulative goal of Article 57 lies in spelling out the significance of doing justice to distinction and proportionality: this is done by protecting civilians as much as it may be militarily possible.99_{It does not}

however, spell out the way in which the attacker’s obligations fall by the wayside if the presence of the civilian population interferes with a belligerent ability to conduct effective military operations.100

93 Action on Armed Violence, “Under Israel Fire. Israel’s artillery policies scrutinised”, December 2014, available at

https://aoav.org.uk/wp-content/uploads/2015/03/AOAV-Under-Fire-Israels-artillery-policies-scrutinised.pdf, accessed May 2016.

94 Human Rights Council, Human rights situation in Palestine and other occupied Arab territories, Report of the independent commission of inquiry established pursuant to Human Rights Council resolution S-21/1, A/HRC/29/52,24 June 2015, available at

http://www.ohchr.org/EN/HRBodies/HRC/CoIGazaConflict/Pages/ReportCoIGaza.aspx#report, accessed May 2016.

95 Human Rights Council, Report of the independent commission of inquiry established pursuant to Human Rights Council resolution S-21/1, A/HRC/29/52,24 June 2015, Paragraph 42: “In a number of incidents examined, the concerned persons either did not understand that their house had been the subject of a “roof-knock”, or the time given for evacuation between the warning and the actual strike was insufficient. In one case examined by the commission, a 22-member family, including nine children, were given just a few minutes to evacuate their home after a “roof knock” in the early hours of the morning, while they were asleep; 19 of the 22 people present in the house died. The commission concluded that “roof knocks” cannot be considered an effective warning given the confusion they often cause to building residents and the short time allowed to evacuate before the actual strike.”.

96 Action on Armed Violence, “Under Israel Fire. Israel’s artillery policies scrutinised”, December 2014, available at

https://aoav.org.uk/wp-content/uploads/2015/03/AOAV-Under-Fire-Israels-artillery-policies-scrutinised.pdf, accessed May 2016. 97 API, Article 52(2).

98 Dill J., “Israel’s Use of Law and Warnings in Gaza” at

http://opiniojuris.org/2014/07/30/guest-post-israels-use-law-warnings-gaza/, accessed May 2016. 99 Ibidem.

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Moreover, during the ground operations, the IDF used explosive weapons extensively in densely populated areas of Gaza. These weapons included artillery and tank shells, mortars and air-dropped high-explosive munitions.101

According to official Israeli sources, artillery was used in urban areas only on an exceptional basis, however the Report of the Commission shows that “artillery and other heavy weapons were widely used in residential neighbourhoods, resulting in a large number of casualties and extensive destruction”.102

Recently, the conflict in Ukraine has exacerbated with particular negative effects on the civilian populations. According to a report of the UN Secretary General103_{, at least 6,344 people were killed between mid-April}

and mid-May 2015. Moreover the use of explosive weapons in populated areas has increased, hitting numerous residential areas.104_{In particular, the use of MRLS which, as underlined in the previous paragraph,}

has not been deemed as “inherently indiscriminate” by the ICTY in the Gotovina case, has again raised concern about the legality of the use of these kind of weapons in populated areas.105

The secretary General has, furthermore, expressed concern about the situation in Libya, where since 2014 hostilities have intensified and the humanitarian situation has deteriorated: “The widespread use of explosive weapons in populated areas has taken a heavy toll on civilians, causing death, injury, displacement and the destruction of homes and essential infrastructure, while also leaving dangerous explosive remnants of war”.106_{The impact of explosive violence on the Libyan population was already examined by the UN}

Human Right Council Commission of Inquiry in Libya, finding that “the Libyan authorities have not been undertaking appropriate and precautionary assessments which would, in the Commission’s view, militate against the use of weapons, such as mortars, in densely urban areas.”.107

101 According to the Report of the Independent Commission of Inquiry, “The Forces reported that, during the operation, 5,000 tons of munitions were supplied, and that 14,500 tank shells and approximately 35,000 artillery shells had been fired. One non-governmental organization reported a 533 per cent-increase in highly explosive artillery shells used in 2014 in comparison to the hostilities in 2008 and 2009.”.

102 Human Rights Council, Report of the independent commission of inquiry established pursuant to Human Rights Council resolution S-21/1, A/HRC/29/52,24 June 2015, Paragraph 48.

103 UN Security Council, Report of the Secretary-General on the protection of civilians in armed conflict, S/2015/453, 18 June 2015, paragraph 25, available at http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2015_453.pdf, accessed May 2016.

104 See Human Rights Watch, ‘Ukraine: Unguided Rockets Killing Civilians, Stop Use of Grads in Populated Areas’, 24 July 2014, available at https://www.hrw.org/news/2014/07/24/ukraine-unguided-rockets-killing-civilians, accessed May 2016.

105 For a detailed report on the explosive violence in Ukraine see “Collateral-The Human Cost of Explosive Violence in Ukraine”, available at http://www.unocha.org/node/196051, accessed May 2016.

106 UN Security Council, Report of the Secretary-General on the protection of civilians in armed conflict, S/2015/453, 18 June 2015, paragraph 15, available at http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/s_2015_453.pdf, accessed May 2016.

107 Human Rights Council, Report of the International Commission of Inquiry to investigate all alleged violations of international human rights law in the Libyan Arab Jamahiriya, 12 January 2012, A/HRC/17/44, paragraph 189.

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All the aforementioned cases show a lack of clarity in the normative framework related to these practices and therefore induce parties of armed conflicts to not abide to the rules.

2.3. Does international humanitarian law adequately protect civilians in populated areas?

The central issue of this chapter is to understand whether IHL provides an adequate framework for the protection of civilians affected by the use of explosive weapons. There are still numerous types of criticism when it comes to the issues concerning the civilian protection from the effects of the use of explosive weapons in populated areas. As underlined by John Borrie108_{, “some critics have argued that IHL rules suffer}

a critical deficiency, claiming that ‘the laws of war have been formulated deliberately to privilege military necessity at the cost of humanitarian values’, and do not impose restraint on customary military practices beyond military expedience itself.”.

Moreover the rules of proportionality, necessity and precaution do not provide a clear framework which assesses which kind of attacks should be considered proportional. On the contrary, the pattern of harm caused by explosive weapons in populated areas, as underlined in the second paragraph, suggests that IHL, as applied in practice, does not sufficiently protect the civilian population.

The fundamental issue regarding the principle of proportionality lies in the fact that it tends to be ambiguous: civilian harm and consequences related to the destruction of infrastructures are factors that this rule fails to regulate adequately.109_{In addition, with regards to the rule of precaution, parties of armed conflicts must}

carefully verify the nature of the target so as to give warnings before an attack. However warnings cannot be used, as analysed in the practice of “roof-knocking”, as a justification in targeting civilians who choose to stay in the battlefield either because they are unable to leave it or for any other valid reason.110

Moreover, the regulation of explosive weapons in the international treaty law is fragmentary.111_Only

anti-personal landmines and cluster munitions are banned under international law respectively by the Ottawa Convention112_{and by the Convention on Cluster Munitions.}

In a previously examined central issue of the ICTY jurisprudence regarding the use of indiscriminate weapons, Cassese has noted that the prohibitory intent regarding the general rules which ban indiscriminate

108 Borrie J. and Brehm M., “Enhancing civilian protection from use of explosive weapons in populated areas: building a policy and research agenda”, International Review of the Red Cross, Volume 93, Number 883, September 2011, pp. 820-822.

109 Lefenya K., “Use of Explosive Weapons in Densely Populated Areas: Implications for International Humanitarian Law”, African Yearbook on International Humanitarian Law (2014), pp.82-84.

110 Ibidem.

111 Brehm M., “International humanitarian law and the protection of civilians from the effects of explosive weapons”, in C. Harvey, J. Summers, N. D. White (Eds.), Contemporary Challenges to the Laws of War: Essays in Honour of Professor Peter Rowe, Cambridge University Press, October 2014, pp. 254-258.

112 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 18 September 1997.

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weapons, have proved scarcely effective.113_{Furthermore, nowadays States seem to consider the general}

principle related to indiscriminate weapons as valueless.114

The customary rule regarding area bombardments is challenged on a daily basis by the use of explosive weapons in populated areas. Furthermore the use of area weapons and area targeting is not banned under any special restriction, as shown by the analysis of the ICTY jurisprudence.

In light of the foregoing, IHL appears increasingly inadequate to provide protection to the civilian population from the effects of hostilities in populated areas.

113 Cassese A., “The Prohibition of Indiscriminate Means of Warfare”, in The Human Dimension of International Law: Selected Papers of Antonio Cassese, ed. A. Cassese et al., Oxford University Press 2008 in Brehm M., “International humanitarian law and the protection of civilians from the effects of explosive weapons”, in C. Harvey, J. Summers, N. D. White (Eds.), Contemporary Challenges to the Laws of War: Essays in Honour of Professor Peter Rowe, Cambridge University Press, October 2014, pp. 252.

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CHAPTER III

International Human Rights law and the possibility to address harm from explosive weapons

3.1 Explosive weapons impact on human rights

The use of explosive weapons in populated areas has a devastating impact on the benefits of a wide range of human rights.115_{As shown in the previous chapter, the use of weapons in modern warfare, such as multiple}

barrel launchers or air dropped bombs is likely to cause incidental death, injuries and destruction to civilians.116_{The current section will firstly examine, how the use of explosive weapons in populated areas}

impact human rights and how some regional tribunals have dealt with this issue. Secondly, I will discuss how the involvement of human rights laws and human rights bodies could benefit the discourse on the protection of civilians against the use of explosive violence.

Without doubt, the most affected human right is the right to live. According to the civil society organisation Action on Armed Violence (AOAV), in 2015 when explosive weapons were used in populated areas, 92% of deaths and injuries were reported to be on civilians.117_{Moreover, it is worth stressing that civilians were}

killed or injured in large numbers when explosive weapons were aimed to target specifically armed actors or military objectives.118

The right to life generally means that States are prohibited from arbitrarily depriving someone of their life.119

This right is granted in the main international and regional human rights treaties: Article 6 International Covenant on Civil and Political Rights (ICCPR), Article 4 American Convention on Human Rights(ACHR), Article 4 of the African Charter on Human and People’s Rights (ACHPR) and Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). In time of war or other public emergency, art 15 of the ECHR allows a state party to take measures which derogate from its obligations, provided that such measures are not inconsistent with other obligations under ‘international law’.120

115 Brehm M., 'The human cost of bombing cities: How the international debate on explosive weapons overlooks human rights',

Sur International Journal on Human Rights, Volume 12, Number 22, Dec 2015, p. 69.

116 Brehm M., ‘Protecting civilians from the effects of explosive weapons in International Humanitarian Law’, in C. Harvey, J. Summers, N. D. White (Eds.), Contemporary Challenges to the Laws of War: Essays in Honour of Professor Peter Rowe, Cambridge University Press, October 2014, p. 236.

117 Hitchcock C., “Unacceptable Harm - Monitoring Explosive Violence in 2015”, available at https://aoav.org.uk/wp-content/uploads/2016/05/AOAV-Explosive-Monitor-2015.pdf, accessed May 2016, p. 17.

118 According to the AOAV Report, “In 2015, 42% of those killed or injured by attacks which were explicitly coded as targeting armed actors were civilians. In populated areas this rose to 80%, whilst in non-populated areas it fell to 15%. The percentages of those killed who were civilians were considerably higher in 2015 than in 2014. This is largely because of two countries – Yemen and Syria – where air-launched attacks have caused very high levels of civilian harm. In Yemen, 85% of those killed or injured by attacks that were claimed as targeting armed actors were reportedly civilians.”.

119 Rodley N., “Integrity of the person”, in International Human Rights Law, (D. Moeckli et al. Ed.), Oxford University Press 2014, p. 184.

120 Gioia A., “The Role of the European Court of Human Rights in Monitoring Compliance with Humanitarian Law in Armed Conflict”, in International Humanitarian Law and Human Rights Law, (O. Ben-Naftali ed.), Oxford University Press 2011, p. 216.

Civilian protection and the use of explosive weapons in populated areas : Could the application of Human Rights Law solve the ambiguity of International Humanitarian Law?

TABLE OF CONTENTS