OGIHL - Methods of Warfare

10
Methods of Warfare
Gloria Gaggioli and Nils Melzer
1. Introduction
Current world affairs are plagued by a plethora of conflicts, many of them marked by
methods of warfare displaying a shocking disregard for the established principles of inter-
national humanitarian law (IHL). In some contexts, it seems that methods such as direct
attacks against civilians and unarmed or wounded combatants, indiscriminate attacks, per-
fidious suicide-bombings, and the destruction and pillage of cultural objects have become
commonplace, and it seems to have been forgotten that even wars have limits.
The so-called ‘Hague Law’, which regulates the use of means and methods of warfare so
as to mitigate, as much as possible, the ‘calamities of war’,1 is the oldest branch of IHL. Its
basic tenet can be summarized in three fundamental maxims, namely: (i) that ‘the only le-
gitimate object which states should endeavour to accomplish during war is to weaken the
military forces of the enemy’;2 and that therefore, in pursuing this aim, both (ii) ‘the right
of the Parties to the conflict to choose methods or means of warfare is not unlimited’;3 and
(iii) ‘[t]‌he civilian population and individual civilians shall enjoy general protection against
dangers arising from military operations’.4
The first maxim expresses the basic principle of military necessity, which limits the permis-
sibility of means and methods of warfare to what is actually required for the achievement of a
legitimate military purpose. The second maxim provides the basis for the prohibition of means
and methods of warfare that are of a nature to cause superfluous injury or unnecessary suf-
fering to combatants.5 The third maxim concerns the principle of distinction,6 which prohibits
not only direct attacks against civilians and the civilian population, but also indiscriminate
means and methods of warfare. Both the prohibition of unnecessary suffering and the principle
of distinction are regarded as ‘cardinal principles’ of IHL by the International Court of Justice
(ICJ)7 and, in this basic form, are universally accepted as part of customary international law.8
1 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight, Saint
Petersburg (29 November–11 December 1868) (St Petersburg Declaration).

2 ibid.
3 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims
of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) (API) article 35(1).
See also Regulations Annexed to the Hague Convention (IV) Respecting the Laws and Customs of War on Land
and Its Annex: Regulation concerning the Laws and Customs of War on Land (18 October 1907, entered into force
26 January 1910) 187 CTS 227 (Hague Regulations) article 22.
4 API article 51(1).
5 Hague Regulations 1907 article 23(e); API article 35(2); Jean-Marie Henckaerts and Louise Doswald-Beck
(eds), Customary International Humanitarian Law (CUP 2005) (CIHL) rule 70. See also St Petersburg Declaration.
6 API article 48; CIHL rule 1.
7 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 266 (Nuclear Weapons)
para 78.
8 CIHL rules 1 and 70.
236 Gloria Gaggioli and Nils Melzer
Beyond the restatement of these fundamental maxims and principles, however, a more com-
prehensive discussion on methods of warfare gives rise to difficult questions. How should the
notion of ‘methods of warfare’ be defined and, in particular, how should it be distinguished
from the related notion of ‘means of warfare’? Are the generic prohibitions of indiscriminate
attacks and of superfluous injury/unnecessary suffering specific enough in terms of detail, and
sufficiently broad in terms of scope, to regulate each and every method of warfare? What are the
main methods of warfare that have been more specifically regulated in customary and treaty
IHL? Are there differences as to how IHL regulates methods of warfare in international armed
conflicts (IACs) and non-international armed conflicts (NIACs)?
Once these preliminary issues have been explored, the objective of this chapter is to
outline the current state of the law regulating methods of warfare. For the purposes of the
chapter, the rules of IHL regulating methods of warfare are distinguished according to their
protective purpose, ie those aiming to protect civilians and the civilian population based
on the principle of distinction9 are discussed separately from those aiming to protect com-
batants based on the prohibition of unnecessary suffering or other principles of IHL. For
each method of warfare, the questions analysed will be the following. When and how has
the method been restricted or prohibited in customary or treaty law? Does recourse to the
restricted/prohibited method of warfare give rise to individual criminal responsibility?
Why has the method been restricted/prohibited (ratio legis)? What is the exact content and
meaning of the restriction/prohibition? Are there open questions regarding the interpret-
ation of the elements of the restriction/prohibition? Are there recent examples of contem-
porary practices and policies which may be relevant to the rule in question?
A concluding section summarizes our findings and attempts a cursory outlook as to
the relevance of contemporary trends, such as the advent and seamless integration of
new technologies into the arsenal, strategies, and tactics of armed and security forces
throughout the world.
2. Defining and Regulating Methods of Warfare
A. Defining Methods of Warfare
The notion of ‘methods of warfare’ is mentioned several times in Additional Protocol

I (API) to the Geneva Conventions.10 It is usually employed together with its twin no-
tion ‘means of warfare’. In Additional Protocol II (APII) dealing with NIACs, where
states party to a treaty were hesitant to use the term ‘warfare’,11 and on one occasion in
9 Note: some of the methods used specifically against civilians are already dealt with under
c hapter 7 ‘International Humanitarian Law and the Conduct of Hostilities’. These will therefore be mentioned, but
not necessarily much elaborated.
10 The recent IHL provisions using the term methods of warfare: in API: Title of Part III, Section I; article
35(1–3) (Basic Rules); article 36 (New Weapons); article 51 (4(b)–(c) and 5(a)) (indiscriminate attacks); article
54(1) (starvation); article 55(1) (protection of the natural environment); and article 57(2)(a)(ii) (principle of
precautions).
11 The ICRC Commentary on Article 14 of the Protocol Additional to the Geneva Conventions of 12 August
1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (adopted 8 June 1977, en-
tered into force 7 December 1978) 1125 UNTS 609 (APII) specifies that the Conference ‘considered inappropriate
to refer to warfare in an instrument concerning non-international armed conflicts’. See Yves Sandoz, Chrisophe
Swinarski, and Bruno Zimmerman (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva
Methods of Warfare 237
API,12 treaty law also refers to ‘methods of combat’ instead. Generally, however, states pre-
ferred the term ‘warfare’ to that of ‘combat’, the latter having been proposed in the original
draft text prepared by the International Committee of the Red Cross (ICRC), because they
felt ‘combat’ might be construed more narrowly than ‘warfare’.13 For the purposes of the
present analysis, both terms will be used synonymously.
In any event, neither the concept of ‘methods of warfare’ nor that of ‘methods of combat’
has been defined in treaty law and there was no attempt to do so in the discussions preceding
the adoption of the Additional Protocols to the Geneva Conventions.14 The Commentaries
to the Additional Protocols simply state that while the term ‘means’ of warfare refers to
weapons, the term ‘methods’ of warfare generally refers to the way in which weapons are
used.15 This distinction between ‘means’ and ‘methods’ of warfare is important because
any weapon (means)—ie even lawful ones—can be used in an unlawful manner (method),
whereas the use of weapons that have been prohibited because of their inherent characteris-
tics is unlawful regardless of the manner in which they are being employed.16 Nevertheless,
the interpretation of the term ‘methods of warfare’ as proposed in the Commentaries is too
restrictive, given that even methods not necessarily involving the use of a weapon, such as
starvation,17 improper use of emblems,18 perfidy,19 or denial of quarter20 are either expressly
described as ‘methods of warfare’ or as a ‘method of combat’, or are systematically included
in Part III, Section I of API on ‘Methods and Means of Warfare’ (articles 35–42 API).21
A partly more convincing interpretation is proposed in the book How does Law Protect
in War?, where methods of warfare are defined as: ‘(i) the way and manner in which the
weapons are used; (ii) any specific, tactical or strategic, ways of conducting hostilities that
are not particularly related to weapons and that are intended to overwhelm and weaken
the adversary’.22 This definition has the merit of highlighting that methods of warfare are
more than just the manner in which weapons are used. It is less convincing in that it re-
quires that methods of warfare must be ‘intended to overwhelm and weaken the adver-
sary’. This element seems to be overly restrictive, given that any hostile act, irrespective of
its magnitude, intensity, or target, can employ a method of warfare subject to restrictions
under IHL.
The notion of methods of warfare should be understood more accurately as referring to
any particular manner of using weapons or of otherwise conducting hostilities, irrespective
Conventions of 12 August 1949 (ICRC/Martinus Nijhoff 1987) (AP Commentary) para 4799. This point raises the
question whether methods of warfare are supposed to be more restrictive in NIACs.
12 See API article 51(4)(b) and (c) using the terms ‘methods of combat’ as an element of the definition of ‘indis-
criminate attack’.
13 AP Commentary on API article 35 para 1401.
14 ibid on APII article 14 para 4799.
15 ibid on API article 35 para 1402; on API article 51 para 1957.
16 Nils Melzer, International Humanitarian Law—A Comprehensive Introduction (ICRC 2016) 104.
17 API article 54(1) AP and APII article 14.
18 ibid articles 38 and 39.
19 ibid article 37.
20 ibid article 40.
21 Not very helpful in this respect is the rather loose use of the term ‘weapon’ in the AP Commentary, which
states that: ‘Starvation is referred to here as a method of warfare, ie, a weapon to annihilate or weaken the popula-
tion’ (para 2090) or ‘Starvation is prohibited as a method of combat, ie, when it is used as a weapon to destroy the
civilian population’ (para 4799)’ (emphasis added).
22 Marco Sassòli, Antoine Bouvier, and Anee Quintin, How Does Law Protect in War? (ICRC 2011) 280.
of permissibility or appropriateness, and ranging from the use of emblems, flags, uniforms,
and weapons or other equipment to the choice of targets for attack.
B. Regulating Methods of Warfare
Methods of warfare are regulated, on the one hand, by general principles applicable to all
military operations and, on the other hand, by special provisions governing a number of
specific methods of warfare. This section focuses on general principles, more particularly
on the principle of distinction and the prohibition of superfluous injury or unnecessary
suffering.
The principle (or ‘basic rule’) of distinction has attained undisputed customary status
in both IACs and NIACs.23 It prohibits not only direct attacks against civilians, but also in-
discriminate attacks as a method of warfare. While the prohibition of direct attacks against
civilians is fairly straightforward and identical in both IACs and NIACs, the concept of
indiscriminate attacks may require some further explanation. In essence, indiscriminate
attacks strike military objectives, civilians, and civilian objects without distinction, either
because they are not or cannot be directed at a specific military objective, or because their
effects cannot be limited as required by IHL.24
Particularly devastating examples of indiscriminate attacks were the so-called ‘carpet
bombing’ campaigns of the Second World War, in which entire areas containing both mili-
tary objectives, civilians, and civilian objects were treated as a single military objective and
attacked without distinction.25 Another example of indiscriminate attacks are those which
may be expected to cause incidental harm to civilians or civilian objects that would be ex-
cessive in relation to the concrete and direct military advantage anticipated and, therefore,
violate the IHL principle of proportionality.26 While the principle of proportionality is ex-
tremely important, its operationalization gives rise to challenging questions. When can
incidental civilian damage be considered excessive? How does the value of a human life
compare to that of a military objective? Should the safety of a belligerent’s own forces be
taken into account as part of the military advantage assessment? Should the lives of enemy
combatants that are hors de combat be taken into account although the rule in API refers to
civilians only?
Finally, it should be noted that intentionally attacking civilians or civilian objects, as well
as wilfully launching an indiscriminate attack affecting the civilian population or civilian
objects knowing that such attack will cause excessive loss of life or injury to civilians, or ex-
cessive damage to civilian objects, amounts to a war crime.27
The second general principle restricting methods of warfare is the prohibition of su-
perfluous injury or unnecessary suffering. It is one of the rare principles, if not the only
one, that protects combatants and other legitimate targets during the conduct of hos-
tilities. Surprisingly, the prohibition of methods of warfare that cause superfluous injury
23 API article 48; CIHL rule 1.

24 API article 51 (4) and (5); CIHL rules 11–13.
25 Melzer, Interntional Humanitarian Law (above n 16) 86.
26 API article 51(5)(b).
27 ibid article 85(3)(a)–(b); Rome Statute of the International Criminal Court, 17 July 1998 (Rome Statute) art-
icle 8(2)(b)(i)(ii)(iv) and 8(2)(e)(i).

or unnecessary suffering was first introduced in API, whereas the 1868 Saint Petersburg
Declaration and 1907 Hague Regulations only deal with means—but not with methods—
of warfare causing superfluous injury or unnecessary suffering.28 The prohibition now be-
longs to customary law which governs both IACs and NIACs, and the use of such methods
is considered as amounting to a war crime in the Rome Statute.29
The key issue is to define ‘superfluous’ and ‘unnecessary’.30 In 1997, the Health Operations
Division of the ICRC launched its SIrUS Project, which attempted to define what ‘unneces-
sary suffering’ means from a medical perspective.31 According to the resulting study, a spe-
cific means or method of warfare should be considered as inflicting superfluous injury or
unnecessary suffering if it: (i) would cause a specific disease, a specific abnormal physio-
logical state, a specific abnormal psychological state, a specific and permanent disability,
or specific disfigurement; or (ii) would imply a field mortality of more than 25 per cent or
hospital mortality of more than 5 per cent; or (iii) would inflict grade 3 wounds as meas-
ured by the Red Cross wound classification; or (iv) would cause effects for which there is no
well-recognized and proven treatment. However, this proposal failed to gather the support
of states and, therefore, remained dead letter. The inevitability of serious permanent dis-
ability can nevertheless be regarded as a relevant factor, which was taken into account, most
notably, for the prohibition of blinding laser weapons32 and of antipersonnel landmines.33
Although treaty law does not define the meaning of the terms ‘unnecessary’ and ‘super-
fluous’, it can safely be said that the principle requires a balance between considerations of
military necessity and of humanity.34 As a minimum, the rule prohibits the infliction of suf-
fering that has no military purpose.35 The ICJ, in its Advisory Opinion on Nuclear Weapons,
considered that inflicting superfluous injury or unnecessary suffering means to cause com-
batants ‘harm greater than that unavoidable to achieve legitimate military objectives’.36 In
this conception of the principle, it is thus not so much the degree of the inflicted suffering
that makes a means or method of warfare unlawful, but that the inflicted suffering exceeds
the harm that is unavoidable—ie necessary—to achieve a legitimate military objective.37
28 CIHL commentary on rule 70.

29 Rome Statute article 8 (2)(b)(xx).
30 The St Petersburg Declaration also mentions arms rendering death inevitable, although this wording has un-
fortunately not been adopted by other IHL treaties. It is submitted that methods of warfare rendering death inevit-
able are equally prohibited.
31 Robin M Coupland (ed), The SIrUS Project, Towards a Determination of Which Weapons Cause ‘Superfluous
Injury or Unnecessary Suffering’ (ICRC 1997).

32 Protocol (IV) on Blinding Laser Weapons (adopted 13 October 1995, entered into force 30 July 1998) 1380
UNTS 370 (CCW Protocol IV).

33 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines
and on their Destruction (18 September 1997) (so-called Ottawa Convention). See CIHL commentary on rule 70
and 86.
34 Melzer, International Humanitarian Law (above n 16) 110.
36 Nuclear Weapons para 78.
37 cf. in the context of the Nuclear Weapons Advisory Opinion requested by the WHO before the ICJ, see the
letter dated 19 June 1995 from the Honorary Consul of Solomon Islands in London, together with written com-
ments of the Government of Solomon Islands, para 4.6:
The use of nuclear weapons necessarily causes ‘superfluous injury’ to its victims. ( . . . ) Proponents of
the legality of the use of nuclear weapons ( . . . ) suggest that there is no unnecessary suffering where
there exists a reasonable link between the military advantage gained and the damage caused to the
enemy. (See eg United Kingdom ( . . . ), Netherlands ( . . . ), United States ( . . . )). This approach disre-
gards fundamental principles of humanitarian law. ( . . . ) The concept of ‘unnecessary suffering’ does
not depend on what a particular army judges to be good or bad in terms of military advantage, but on
When making this assessment, the availability of alternative—less harmful—means and
methods of warfare must therefore be taken into account.38
However, as an argument for absolutely outlawing means and methods of warfare that
may well be capable of delivering military advantage and even victory—such as poison,
blinding laser weapons, and chemical weapons—the prohibition of unnecessary suffering
and superfluous injury reflects not only considerations of military necessity, but also those
of proportionality with respect to the harm inflicted on enemy combatants.39 Thus, the fact
that article 51(5)(b) of API focuses on the protection of the civilian population and does not
consider the harm inflicted on able-bodied combatants does not mean that this particular
provision exhaustively expresses all considerations of proportionality made in IHL gov-
erning the conduct of hostilities. Rather, these provisions of IHL (ie prohibition of unneces-
sary suffering and superfluous injury and the prohibition of disproportionate attacks) point
towards an understanding of proportionality as a general principle of law that governs all
resort to force and all causation of harm in any circumstances, including the harm inflicted
on able-bodied enemy combatants during hostile conduct.
Based on the prohibition of superfluous injury or unnecessary suffering, certain weapons
(ie means of warfare) have been prohibited, such as blinding laser weapons, expanding bul-
lets, and weapons that injure by means of non-detectable fragments.40 Even fewer examples
come to mind concerning methods of warfare that cause superfluous injury or unnecessary
suffering.41 The denial of quarter is one of the few methods of warfare that indisputably in-
flicts unnecessary suffering because it excludes the possibility of weakening enemy forces
by merely capturing or injuring—rather than killing—its combatants. Arguably, the denial
or quarter was also applied to the scores of Iraqi soldiers needlessly being buried alive in
their trenches by US forces in the early hours of the allied ground attack that ended the First
Persian Gulf war.42
Although the principle of distinction and the prohibition of superfluous injury/un-
necessary suffering are well established, it remains controversial whether or not they can
directly prohibit specific means and methods of warfare without a more specific treaty pro-
vision or customary rule.43 The predominant and more convincing view, which was also
expressed by the ICJ in its Nuclear Weapons Advisory Opinion,44 is that the prohibitions
an objective determination of the victims’ injury. It is their suffering which is at issue, not the interest of
obtaining military advantage.
38 CIHL commentary on rule 70 and related practice. See, in particular, US, Air Force Pamphlet (1976) para 6-
3(b)(1) and (2). See also UK, written statement submitted to the ICJ, Nuclear Weapons Advisory Opinion (16 June
1995) 50 para 3.64.
39 See, for instance, in this sense: US, Air Force Pamphlet (1976), para 6-3(b)(1) and (2): ‘This prohibition against
unnecessary suffering is a concrete expression of the general principles of proportionality and humanity.’
40 Melzer, International Humanitarian Law (above n 16) 110. For additional examples, see CIHL commentary on rule 70.
41 See CIHL commentary on rule 70, which states that ‘States articulating [the prohibition of methods of war-
fare that cause superfluous injury or unnecessary suffering] do not give any examples of methods of warfare that
would be prohibited by virtue of this rule.’
42 Robert Kolb, Ius in bello: Le droit international des conflits armés, Précis (Helbing and Lichtenhahn 2003) 139,
para 311. For a newspaper article on this attack, see Eric Schmitt, ‘U.S. Army Burried Iraki Soldiers Alive in Gulf
War’ New York Times (New York, 15 September 1991).
43 For instance, France and Russia held in the context of the Nuclear Weapons Advisory Opinion before the ICJ
that a weapon can be prohibited by virtue of one or the other of the said cardinal principles only if states prohibit
the weapon by a treaty. See: Russian Federation, written statement submitted to the ICJ, Nuclear Weapons Advisory
Opinion (19 June 1995) 12; French Republic, written statement submitted to the Nuclear Weapons Advisory
Opinion (19 June 1995) 42.
44 Nuclear Weapons para 95.
of indiscriminate attacks and of the means and methods causing superfluous injury or un-
necessary suffering constitute generic and legally binding standards by which all means and
methods of warfare have to be measured, even in the absence of specific treaty provisions
or recognized customary rules relevant to the particular means or method in question.45 In
essence, therefore, the fact that a specific method of warfare is not prohibited or restricted
by a specific treaty provision does not necessarily mean that this method is lawful. This con-
clusion receives further support in the longstanding customary principle expressed in the
Martens Clause, according to which, where treaty law fails to provide a specific rule, ‘both
civilians and combatants remain under the protection and authority of the principles of
international law derived from established custom, from the principles of humanity and
from the dictates of public conscience’.46
A final general issue is whether there are any differences in the regulation of methods
of warfare, which depend on whether the conflict is of international or non-international
character. There are only a few treaty provisions applicable in NIACs that expressly address
methods of warfare. While Common Article 3 focuses on the protection of persons hors de
combat, it allows more specific conclusions as to the permissibility of methods of warfare,
albeit only by implication. APII merely recognizes the duty to protect the civilian popula-
tion against the dangers arising from military operations and prohibits a number of spe-
cifically mentioned methods of warfare such as starvation,47 the denial of quarter,48 and
the recruitment of children into armed forces,49 as well as deportations.50 However, neither
does the treaty contain a general prohibition on means and methods of warfare that are of a
nature to cause superfluous injury or unnecessary suffering.
This omission should not be understood as an intended ‘gap’ in legal protection but, at
least in the case of APII, as an incidental result of significant text cuts carried out on the ori-
ginal draft during the very late hours of negotiations, with the declared aim of producing a
simplified text acceptable to states.51 As ‘cardinal principles’ of customary international law,
the principle of distinction, the prohibition of unnecessary suffering and superfluous injury,
and the Martens Clause govern the lawfulness of methods of warfare in any armed conflict,
including those of a non-international nature.52 The Appeals Chamber of the International
Criminal Tribunal for the former Yugoslavia (ICTY) asserted in the Tadić case that:
[e]‌lementary considerations of humanity and common sense make it preposterous that

the use by states of weapons prohibited in armed conflicts between themselves be allowed
45 Melzer, International Humanitarian Law (above n 16) 110–11; Kolb (above n 42) 138–9, para 308; Sassòli et al
(above n 22) 33–4; CIHL commentary on rules 70 and 71.

46 API article 1(2). See also the preamble of APII for a shorter version of the Martens Clause and the preamble of
the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed
to be Excessively Injurious or to Have Indiscriminate Effects, Geneva (10 October 1980). For previous versions of
the Martens Clause, see: Convention (II) with Respect to the Laws and Customs of War on Land (adopted 29 July
1899, entered into force 4 September 1900) 187 CTS 429 (Hague Convention II) preamble (§9); Convention (IV)
Respecting the Laws and Customs of War on Land and Its Annex: Regulation concerning the Laws and Customs of
War on Land (adopted 18 October 1907, entered into force 26 January 1910) 205 CTS 227 preamble (para 8); the
four Geneva Conventions 1949 articles 63, 62, 142, and 158 respectively.
47 APII article 14.
48 ibid article 4(1).
49 ibid article 4(3)(c).
50 ibid article 17.
52 APII, preamble; CIHL rules 70 and 71.
when states try to put down rebellion by their own nationals on their own territory. What
is inhumane, and consequently proscribed, in international wars cannot but be inhumane
and inadmissible in civil strife.53
The same must hold true, mutatis mutandis, with respect to methods of warfare.
Indeed, methods of warfare that are prohibited in IACs based on legal principles ex-
pressing basic humanitarian considerations can be presumed to be equally prohibited
in NIACs.
3. Methods of Warfare that Concern Primarily the Protection

of Combatants
This section deals with prohibited/restricted methods of warfare which are primarily con-
cerned with the protection of combatants; and more specifically, (i) the protection of per-
sons hors de combat; (ii) the prohibition of denial of quarter; and (iii) the restriction of
deception. Unless otherwise specified, the arguments made and the conclusions reached
equally concern both IACs and NIACs. In the latter context, therefore, the term ‘combatant’
will be used in its functional sense, and as covering not only members of the armed forces
of a belligerent state, but also members of organized non-state armed groups with a con-
tinuous combat function.54
A. Protection of Persons hors de combat
The protection of persons hors de combat against direct attack and abuse of power is a well-
established rule of customary and treaty IHL.55 The prohibition of direct attack against
those hors de combat is explicitly recognized in both the 1907 Hague Regulations and in
API.56 Regarding NIACs, it is expressly recognized in article 3 common to the Geneva
Conventions, which protects those taking no active part in the hostilities, including those
placed ‘hors de combat’, against violence to life and person and other forms of abuse. It has
also been codified in article 4 of APII, albeit in slightly different words.57 The prohibition is
considered to constitute a customary rule applicable in both IACs and NIACs.58 Wilfully
making a person the object of attack in the knowledge that he or she is hors de combat, thus
causing his or her death or serious injury to body or health, is a war crime.59
53 Prosecutor v Dusko Tadić a/ k/a ‘Dule’ (Decision on the Defence Motion for interlocutory Appeal on
Jurisdiction, Appeals Chamber) IT-94-1-AR72 (2 October 1995) para 119.
54 Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International
Humanitarian Law, ICRCH DPH Guidance (ICRC 2009) 27.

55 Instructions for the Government of Armies of the United States in the Field, General Orders No 100 (24 April
1863) (Lieber Code) article 71; Project of an International Declaration concerning the Laws and Customs of War
(27 August 1874) (Brussels Declaration) article 13(c); Institute of International Law, The Laws of War on Land
(Institute of International Law 9 September 1880) (Oxford Manual) article 9 (b).
56 Hague Regulations article 23(c); API article 41(1).
57 See in this sense CIHL commentary on rule 47.
58 CIHL rule 47.
59 See API article 85(3)(e). See also Rome Statute article 8 (2)(b)(vi). These provisions deal with IAs. It is sub-
mitted that it should also be considered a crime in NIACs.

The ratio legis for the protection of persons hors de combat is that persons hors de combat
no longer pose a military threat and that, therefore, hostile acts against them could not be
justified based on any reasonable balance between considerations of military necessity and
humanity. Accurately understood, the reason for the protection granted by IHL is not that
the killing of persons hors de combat could never offer a military advantage, but rather that
absent of any hostile act on the part of those hors de combat, their killing would be regarded
as inhumane or, more precisely, disproportionately harmful compared to the potential
military benefit. Just like the prohibition on unnecessary suffering and superfluous injury,
and probably at least in part a concretization of that rule, the hors de combat protection is
based on generic considerations of necessity and proportionality. Arguably, the protection
of those hors de combat could also be derived from a broad understanding of the principle of
distinction as offering protection against attacks not only to civilians but also to combatants
hors de combat.
A person is hors de combat if he or she is in the power of an adverse party, clearly ex-
presses an intention to surrender, or is incapable of defending him-or herself because of
unconsciousness, shipwreck, wounds, or sickness, and, in all those cases, abstains from any
hostile act and does not attempt to escape.60
Persons are ‘in the power’ of a belligerent party not only when they are captured, but also
when they are otherwise within the effective physical or material control of that party.61
The ICRC Commentaries even argue that, in the context of an air strike, combatants might
be ‘in the power of ’ the air force operators if at some point they are at their mercy and thus
defenceless.62 A less extreme and, arguably, more convincing argument against attacking
defenceless enemy forces that are unable to surrender could be made based on the absence
of military necessity in conjunction with the imperatives of humanity.63
Persons can express their intention to surrender in various ways, depending on the cir-
cumstances. In land warfare, persons may commonly surrender by laying down their arms
and by raising their hands or a white flag.64 Regarding persons parachuting from aircraft
in distress, attacks are prohibited for the duration of their descent.65 Upon reaching the
ground in territory controlled by an adverse party, they have to be given an opportunity
to surrender before being attacked, unless it is apparent that they are engaging in a hostile
act.66 This protection does not apply to airborne troops, whose descent constitutes part of
their hostile operations.67
What happens if a wounded or surrendering soldier on the battlefield resumes fighting or
tries to escape? According to the ICRC Commentaries, force can be used against such a sol-
dier but only as a last resort and after a warning appropriate in the circumstances.68 The legal
60 API article 41(1) and (2); CIHL rule 47.

61 AP Commentary paras 1611–1617.
62 ibid para 1612.
63 See also, most notably, Melzer, Interpretive Guidance (above n 54) section IX, 77–82.
64 AP Commentary paras 1618–1619. See also CIHL commentary on rule 47.
65 API article 42(1); CIHL rule 48.
68 AP Commentary on API article 41 para 1613:
From the moment that combatants have fallen ‘into the hands’ of the adversary, the applicability of
the Third Convention can no longer be contested. They are prisoners of war and should never be mal-
treated, but should always be treated humanely. If they make an attempt to escape or commit any
reasoning leading to such an assertion is far from clear, however. Article 41 of the API does
not seem to support these restrictions. It merely states that a person enjoys the protection
of persons hors de combat provided that he/she abstains from any hostile act and does not
attempt to escape. This would logically mean that the protection of persons hors de combat
ceases as soon as they commit a hostile act or attempt to escape, and therefore, they become
subject to direct attacks under the hostilities paradigm.69 On the one hand, it seems clear
that once a person hors de combat has been taken into custody, any force used in response to
a hostile act or attempted escape must be absolutely necessary to prevent said act or escape
and strictly proportionate to the danger resulting from such action. Accordingly, the Third
Geneva Convention provides that the ‘use of weapons against prisoners of war (POWs), es-
pecially against those who are escaping or attempting to escape, shall constitute an extreme
measure, which shall always be preceded by warnings appropriate to the circumstances’.70
On the other hand, persons who are prima facie hors de combat, but who attempt an escape
or engage in hostile acts before being taken into custody can hardly benefit from a restricted
use of force regime comparable to that applicable to POWs. In such a situation, engaging in
hostile acts would generally amount to feigning surrender or other protected status with the
intent of attacking the enemy by surprise. Both variants would amount to prohibited combat
by resort to perfidy and would not justify any restriction of the normal targeting regime.
When enemies have been captured ‘under unusual conditions of combat which prevent
their evacuation’, API expressly requires that ‘they shall be released and all feasible precau-
tions shall be taken to ensure their safety’.71 Thus, if enemy combatants indicate an intention
to surrender or otherwise become hors de combat, they must be captured or, if their evacu-
ation is not possible, released. Although this rule might seem difficult to comply with, in
particular in the context of small-scale operations in enemy territory, treaty law makes it
unequivocally clear that, even in unusual combat conditions, hors de combat protection re-
mains absolute and non-derogable.72
B. Prohibition of Denial of Quarter
Another longstanding rule that is related to the protection of persons hors de

combat is the prohibition of denial of quarter.73 It is explicitly recognized in the 1907
Hague Regulations and in API (IACs),74 as well as in article 4 of APII (NIACs).75
Moreover, this rule is considered customary law76 and its violation amounts to a war
hostile act, the use of arms against them is once more permitted within the conditions prescribed in
the Third Convention. The same applies a fortiori for adversaries who benefit only from the safeguard
of Article 41 without being recognized as prisoners of war. In fact, the proviso at the end of the present
paragraph specifically provides it.
69 Melzer, International Humanitarian Law (above n 16)106.

70 Geneva Convention (III) Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into
force 21 October 1950) 75 UNTS 135 (GCIII) article 42. See also AP Commentary para 1613 and n 17.
71 API article 41 (3).
73 Lieber Code article 60; Brussels Declaration article 13(d); Oxford Manual article 9(b).
74 Hague Regulations article 23(d); API article 40.
75 APII article 4(1).
76 CHIL rule 46.
crime77 in both IACs and NIACs. The ratio legis for the prohibition of denial of quarter
is comparable to that of the hors de combat protection, albeit without any aspects of
the principle of distinction. As stated in section 2 ‘Defining and Regulating Methods of
Warfare’ above, it is a derivate of the prohibition of superfluous injury or unnecessary
suffering and a codified expression of the maxim that the purpose of military hostilities
in warfare is not to kill combatants but to defeat the enemy, even if this requires the
killing of combatants.78 The prohibition of denial of quarter, too, balances the potential
military advantage of leaving no survivors against the requirements of humanity and,
deciding in favour of the latter, expresses generic considerations not only of military ne-
cessity but also of proportionality.
According to the rule, ‘[i]‌t is prohibited to order that there shall be no survivors, to threaten
an adversary therewith or to conduct hostilities on this basis’.79 The prohibition of denial of
quarter also makes it illegal to deliberately refuse or render impossible an enemy’s surrender or
to put to death those who are hors de combat.
Given that persons hors de combat are already protected, the added value of the prohibition
of denial of quarter lies in: (i) the prohibition of threatening or ordering that there shall be no
survivors; and (ii) the restraints this imposes on hostile conduct, namely in the prohibition of
hostile conduct on the basis that there shall be no survivors.80
The prohibition of threatening or ordering that there shall be no survivors primarily con-
cerns military commanders, given that they are in a position to issue such threats or orders.81 It
is rare in international law that the mere threat of committing a violation is prohibited in itself,
the other two examples being the prohibition of ‘the threat or use of force in international rela-
tions’82 and the IHL prohibition to threaten to attack the civilian population with the primary
purpose of spreading terror.83 The most likely rationale for outlawing the mere threat of a pro-
hibited conduct is to avoid the escalatory effect of such threats. Thus, threatening the enemy
with a general refusal to accept his surrender could potentially incite the threatened opponent
to discard the principles of IHL and to resort to any lawful or unlawful means or method of
warfare to overcome his enemy.
The prohibition of conducting hostilities on the basis that there shall be no survivors
essentially requires that an adversary endeavouring to surrender must be given the oppor-
tunity to do so as circumstances reasonably permit.84 On the one hand, therefore, methods
calculated to completely exterminate opposing forces would be in breach of this rule.85
Surprise attacks or employing means and methods of warfare that are incapable of taking
prisoners, on the other hand, do not necessarily amount to denial of quarter. In air war-
fare, for instance, it may not always be feasible to accept surrender. Nevertheless, a policy
or practice of conducting ‘follow-up strikes’ or ‘double strikes’—ie ‘attacks that occur after
77 Rome Statute article 8(2)(b)(xii) (for IACs) and Rome Statute article 8(2)(e)(x) (for NIACs).
78 See also the St Petersburg Declaration, which prohibited the use of explosive projectiles, which ‘uselessly ag-
gravate the sufferings of disabled men, or render their death inevitable’.
79 API article 40. See also Hague Regulations article 23(d) and CIHL rule 46.
80 AP Commentary para 1598. Article 23(c) of the Hague Regulations prohibits the killing and wounding of a
combatant hors de combat separately from the denial of quarter.

82 Charter of the United Nations (26 June 1945) article 2(4).
85 ibid.
a first one and that may intentionally or incidentally kill wounded persons as well as res-
cuers’86—would be unlawful both under the prohibition of killing persons hors de combat
and other protected persons and under the prohibited method of denial of quarter. It is
also unclear whether conducting warfare exclusively through means and methods of war-
fare that are incapable of taking prisoners—for example, drone strikes—would be permis-
sible under the prohibition of conducting hostilities on the basis that there shall be no
survivors.
C. Deception
1. The prohibition of perfidy or treachery

The Hague Regulations of 1907 already prohibited to ‘kill or wound treacherously individ-
uals belonging to the hostile nation or army’.87 API broadens this rule by prohibiting the
use of perfidy to kill, injure, or capture an adversary.88 Although Common Article 3 to the
Geneva Conventions and APII do not contain a similar provision, the prohibition of per-
fidious killing, injury, and capture is considered customary IHL in both IACs and NIACs.89
Under the ICC Statute, ‘killing or wounding treacherously’ an adversary—but not per-
fidious capture—constitutes a war crime in both IACs and NIACs.90
According to the rule, perfidy denotes ‘acts inviting the confidence of an adversary to
lead him to believe that he is entitled to, or is obliged to accord, protection under the rules
of international law applicable in armed conflict, with intent to betray that confidence’.91
Relevant examples would include the feigning: (i) of surrender; (ii) of an intent to nego-
tiate under a flag of truce; (iii) of incapacitation by wounds or sickness; (iv) of civilian,
non-combatant status; and (v) of protected status by the use of the signs, emblems, or
uniforms of the United Nations, of neutral or other non-belligerent states, or of the pro-
tective emblem of the red cross, red crescent, or red crystal. It should be noted that IHL
does not prohibit perfidy per se, but only the killing, injuring, or capturing of an adver-
sary by resort to perfidy. The resort to perfidy for other purposes, such as intelligence
gathering or sabotage, is not covered by the prohibition of perfidy, but may be subject to
other restrictions, such as the prohibition on misuse of emblems, signs, and uniforms.92
Moreover, the prohibition of perfidy does not prohibit ruses of war, ie ‘acts which are in-
tended to mislead an adversary or to induce him to act recklessly but which infringe no
86 ‘Double strikes’ or ‘follow-up strikes’ are ‘attacks that occur after a first one and that may intentionally or inci-
dentally kill wounded persons as well as rescuers’: Raymond Ouigou Savadogo and Julia Grignon, ‘Attacks against
Wounded, Sick, Shipwrecked and Medical Personnel, as Well as the Challenges Posed by ‘Follow Up Strikes’,
in Stephane Kolanowski (ed.), Proc Bruges Coll, Vulnerabilities in Armed Conflicts: Selected Issues, 14th Bruges
Colloquium, 17–18 October 2013, No 44, Autumn 2014, 12.
87 Hague Regulations article 23(b). For earlier prohibitions, see Lieber Code article 101; Brussels Declaration
article 13 (b); Oxford Manual article 8(b).

88 API article 37.
89 CIHL rule 65.
90 Rome Statute article 8(2)(b)(xi) (for IACs); Rome Statute, article 8(2)(e)(ix) (for NIACs). See also API article
85(3)(f).
91 API article 37.
92 See below, section 3.C.2 ‘Misuse of emblems, signs, and uniforms’.
rule of international law applicable in armed conflict and which are not perfidious be-
cause they do not invite the confidence of an adversary with respect to protection under
that law’.93 Examples of permissible ruses include the use of camouflage, decoys, mock
operations, and misinformation.94 Mere intelligence gathering by undercover units dis-
guised as civilians also does not amount to prohibited perfidy.95 If captured, such per-
sonnel would lose their POW status and, therefore, could be prosecuted as spies under
the domestic legislation of the capturing state.
Thus, the ratio legis of the prohibition of perfidy or treachery is to safeguard the good
faith of the belligerents as far as it concerns their duty to afford, or their own entitlement
to, protection under IHL. Indeed, any uncertainty on the part of belligerents as to the reli-
ability and truthfulness of behaviour or circumstances affording civilians or opposing com-
batants protection under IHL would seriously jeopardize their respect for the principle of
distinction.
2. Misuse of emblems, signs, and uniforms

IHL not only prohibits the use of perfidy to kill, injure, or capture an adversary, but also
more generally the misuse of recognized distinctive emblems and emblems of nation-
ality. In particular, it is prohibited to make improper use of emblems, signs, or signals
provided for in IHL, such as the distinctive emblem of the red cross, red crescent, or red
crystal, or to deliberately misuse other internationally recognized protective emblems,
signs, or signals, including the flag of truce, the protective emblem of cultural property
(downward-pointed square blue shield on white ground), the distinctive signs of civil de-
fence (orange triangle on blue ground), installations containing dangerous forces (three
orange circles), and the distinctive emblem of the United Nations.96 IHL also prohibits the
use of the flags or military emblems, insignia, or uniforms of neutral or non-belligerent
states in an armed conflict, whereas those of adverse parties can be used as a ruse of war,
except during direct hostile contact with the enemy, namely while engaging in attacks
or in order to shield, favour, protect, or impede military operations.97 Under the ICC
Statute, ‘Making improper use of a flag of truce, of the flag or of the military insignia and
uniform of the enemy or of the United Nations, as well as of the distinctive emblems of
the Geneva Conventions’ amounts to a war crime in IACs when it results in death or ser-
ious personal injury.98
A well-known example of a violation of this prohibition was the use of the Red Cross
emblem by a Colombian military intelligence team in a hostage rescue mission that freed
fifteen hostages from the hands of the Revolutionary Armed Forces of Colombia (FARC)
rebels in July 2008.99 This misuse was subsequently condemned by the ICRC.100
93 API article 37.

94 ibid. See also CIHL rule 57.
96 API article 38; APII article 12; CIHL rules 59–61.
97 API article 39; CIHL rules 62 and 63.
98 Rome Statute article 8(2)(b)(vii).
99 Karl Penhaul, ‘Uribe: Betancourt Rescuers Used Red Cross’, CNN (16 July 2008) http://edition.cnn.com/
2008/WORLD/americas/07/16/colombia.cross/index.html.
100 ibid.
4. Methods of Warfare Primarily Affecting the Civilian Population
and Civilian Objects
Prohibited methods of warfare are numerous. Many of them have been discussed in other
chapters of this book and do not need to be elaborated on here.101 This section focuses on
three methods of warfare giving rise to particularly thorny legal issues: starvation, reprisals,
and destruction and seizure of property.
A. Starvation
Modern IHL prohibits the starvation of civilians as a method of warfare, ie deliberately

depriving [them] of food.102 Derived from the principle of distinction, this rule appears for
the first time in both Additional Protocols of 1977103 and, today, is considered customary law
in both IACs and NIACs.104 The Rome Statute provides that ‘intentionally using starvation
of civilians as a method of warfare’ is a war crime in IACs.105 Under domestic criminal law,
individuals have also been convicted for the crime of starvation in the context of NIACs.106
A corollary to the prohibition of starvation of civilians, IHL also prohibits the attack,
destruction, removal, or rendering of useless objects indispensable to the survival of the ci-
vilian population (eg foodstuffs, agricultural areas, crops, livestock, drinking water, and ir-
rigation systems) for the specific purpose of denying them for their sustenance value to the
civilian population or to the adverse party, whether in order to starve out civilians, to cause
them to move away, or for any other motive.107 These prohibitions do not apply when the
objects in question are used as sustenance solely for the opposing armed forces, or other-
wise in direct support of military action, unless action taken against them may be expected
to starve the civilian population or force its movement.108 Arbitrarily denying humani-
tarian access in favour of civilians in need, or arbitrarily restricting the freedom of move-
ment of humanitarian relief personnel will also constitute violations of the prohibition of
starvation.109
Although sieges, naval blockades, and embargoes have been condemned by the inter-
national community,110 they are not prohibited, even if they cause starvation, as long as the
101 The prohibition of direct attacks against civilians and civilian objects, the prohibition of indiscriminate
attacks, and the prohibition of human shields are dealt with in chapter 7 ‘International Humanitarian Law and
the Conduct of Hostilities’. The prohibition of methods causing widespread, long-term, and severe damage to, or
involving the hostile manipulation of, the natural environment is dealt with in chapter 9 ‘Protection of the Natural
Environment’. The prohibition of acts or threats of violence with the primary purpose of spreading terror among
civilians as well as hostage taking is dealt with in chapter 17 ‘International Humanitarian Law and International
Human Rights Law’.
102 See generally, Dapo Akande and Emanuela-Chiara Gillard, ‘Conflict-induced Food Insecurity and the War
Crime of Starvation of Civilians as a Method of Warfare: The Underlying Rules of International Humanitarian
Law’ (2019) 17 JICJ 753.
103 API article 54(1); APII article 14.
104 CIHL rule 53.
105 Rome Statute article 8(2)(b)(xxv).
106 See eg Croatia, District Court of Zadar, Perišić and others (Judgment) (24 April 1997).
107 API article 54 (2); CIHL rule 54.
108 API article 54 (3).
109 See CIHL rules 55 and 56. On access to humanitarian relief, see also c hapter 13 ‘Occupation’ in this book.
110 See eg UN General Assembly Resolutions 48/88 (1993), 49/10 (1994), and 49/196 (1994); UN Commission
on Human Rights Resolutions 1994/74 (1994) para 9 and 1995/76 (1995) para 10.
purpose is to achieve a military objective and not to starve the civilian population.111 At the
same time, the prohibition of starvation implies that the besieging party must either allow
the inhabitants to leave the besieged area or permit the free passage of humanitarian relief
supplies.112
For example, in the context of the Gaza blockade, which led to harsh humanitarian conse-
quences and ‘food insecurity’, the issue of starvation has been discussed by several commis-
sions of inquiry. Although these discussions did not reach the same conclusions regarding
the lawfulness of the blockade (in terms of proportionality and on whether it amounted to
collective punishment), none concluded that the blockade amounted to a violation of the
prohibition of starvation as a method of warfare.113 The reason for this was that the starva-
tion of the civilian population was not the ‘sole’114 and not even the ‘main’ purpose115 of the
blockade. This does not, however, relieve the blockading party from their obligation to take
into account, when assessing the proportionality of incidental harm, any starvation which
may be expected to result as an unwanted consequence resulting from the blockade.116
B. Reprisals
Belligerent reprisals are forcible countermeasures. They cover any ‘action that would other-
wise be unlawful but that in exceptional cases is considered lawful under international
law when used as an enforcement measure in reaction to unlawful acts of an adversary’.117
Traditionally, reprisals were regarded as a method of enforcement of IHL.118 Modern IHL,
however, prohibits many types of reprisals without outlawing them altogether.
More specifically, the 1949 Geneva Conventions prohibit reprisals against protected
persons and objects in the power of the enemy. Thus, reprisals are prohibited against the
111 See CIHL commentary on rule 53. See also France: Ministère de la Défense, Manuel de Droit des Conflits
Armés, Direction des affaires juridiques, Sous-direction du droit international humanitaire et du droit européen
(Bureau du droit des conflits armés 2001) 33; New Zealand: New Zealand Defence Forces, Interim Law of Armed
Conflict Manual, DM 112 (New Zealand Defence Forces 1992) para 504(2) n 9; Louise Doswald-Beck (ed), San
Remo Manual on International Law Applicable to Armed Conflicts at Sea (CUP 1995) (adopted 1994, reproduced
1995) No 309 IRRC 583 (San Remo Manual) para 102(a).
112 CIHL commentary on rules 53 and 55. See also Israel: Military Advocate, Laws of War in the
Battlefield: Manual on the Laws of War (Military Advocate General Headquarters 1998) 59: the prohibition of star-
vation ‘clearly implies that the city’s inhabitants must be allowed to leave the city during a siege’.
113 See notably Human Rights Council, Report of the International Fact-Finding Mission to Investigate Violations
of International Law, Including International Humanitarian and Human Rights Law, Resulting from the Israeli
Attacks on the Flotilla of Ships Carrying Humanitarian Assistance, UN Doc A/HRC/15/21 (27 September 2010) (it
found that the blockade was not proportionate and constituted collective punishment); Report of the Secretary-
General’s Panel of Inquiry on the 31 May 2010 Flotilla Incident (July 2011) (UN Appointed Palmer Commission) (it
found that the blockade was lawful). The Public Commission Appointed to Examine the Maritime Incident of 31 May
2010, Part One (January 2011) (Turkel Commission’s Report) (it found that the blockade was lawful).
114 See San Remo Manual para 102(a), which is often considered as restating customary law.
115 See >Humanitarian Policy and Conflict Research at Harvard University (HPCR), ‘The Commentary on the
Humanitarian Policy and Conflict Research (HPCR) Manual on International Law Applicable to Air and Missile
Warfare’ (March 2010) 296 article 157(a) http://ihlresearch.org/amw/Commentary%20on%20the%20HPCR%20
Manual.pdf. This Manual proposed amending the wording of article 102(a) of the San Remo Manual in order to
prohibit the imposition of a naval blockade not only if starvation of the civilian population is its ‘sole’ but also its
‘main’ purpose.
116 In this sense, Turkel Commission’s Report para 75.
118 See eg Emerich de Vattel, The Law of Nations, or the Principles of Natural Law (1797) para 342 http://files.
libertyfund.org/files/2246/Vattel_1519_LFeBk.pdf.
wounded, sick, and shipwrecked, POWs and civilians,119 as well as against the property
of civilians in the hands of an adverse party to the conflict or an occupying power120 and
against medical objects.121
API further prohibits attacks in reprisals directed against civilians,122 civilian objects,123
historic monuments, works of art or places of worship that constitute the cultural or spir-
itual heritage of peoples,124 against objects indispensable to the survival of the civilian
population,125 against the natural environment,126 and against works and installations con-
taining dangerous forces, namely dams, dykes, and nuclear electrical generating stations.127
Cultural property ‘of great importance to the cultural heritage of a people’ is also protected
against ‘any act directed by way of reprisals’ in the Hague Convention for the Protection of
Cultural Property.128
As these provisions make clear, reprisals against military objectives (be they persons
or objects) are not prohibited. To be lawful, however, they must fulfil a number of condi-
tions:129 They must:
(1) respond to a prior serious of IHL violations (no ‘anticipatory/preventive’ reprisal);

(2) aim to induce the adversary to stop such violations (no punishment or revenge);
(3) be carried out as a last resort, when no more lawful measures are available and after
prior warning has been given;
(4) be proportionate to the prior violation;
(5) be authorized at the highest political or military level;
(6) be terminated as soon as the adversary complies with the law.
This means, for example, that a belligerent victim of an IHL violation (eg the enemy uses
chemical weapons), might decide, as a last resort, to use the same prohibited weapons
against enemy soldiers in a proportionate way. Although this is disturbing from a humani-
tarian perspective, this is the current state of the law.
Surprisingly, in the case of the prohibition of reprisals, treaty and customary
law do not necessarily match. While it is uncontroversial that the prohibition of re-
prisals against protected persons and objects in enemy’s hands (Geneva Law) is
119 Geneval Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces
in the Field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31 (GCI) article 46; General
Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea (adopted 12 August 1949, entered into force 12 October 1949) 75 UNTS 85 (GCII) article 47; GCIII
article 13(3); Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (12 August
1949, entered into force 21 October 1950) 75 UNTS 287 (GCIV) article 33.
120 GCIV article 33.
121 GCI article 46; GC II art 47.
123 ibid article 52.
128 Convention for the Protection of Cultural Property in the Event of Armed Conflict (adopted 14 May 1954,
entered into force 7 August 1956) 249 UNTS 240 (1954 Convention) article 4 (4).
129 CIHL commentary on rule 145 (and further references therein). For relevant jurisprudence, see eg Special
Arbitral Tribunal, Naulilaa case (Decision) (31 July 1928) 1026–7; Nuclear Weapons para 46; Kupreškić case (ICTY
Judgment) (14 January 2000), para 535; Martić case (ICTY Trial Judgment) (2007) paras 465–467.
customary,130 the same is not true for reprisals against persons and objects in the con-
duct of hostilities (Hague Law).131
The rule prohibiting reprisals against civilians in API was regarded as a novelty when it
was adopted and several states made reservations to it.132 State practice has substantially
evolved since then,133 although rarely states maintain that reprisals against civilians in the
conduct of hostilities might be lawful in exceptional circumstances.134 According to the
ICRC Customary IHL Study:
[I]‌t is difficult to conclude that there has yet crystallized a customary rule specifically
prohibiting reprisals against civilians during the conduct of hostilities. Nevertheless, it
is also difficult to assert that a right to resort to such reprisals continues to exist on the
strength of the practice of only a limited number of states, some of which is also am-
biguous. Hence, there appears, at a minimum, to exist a trend in favour of prohibiting
such reprisals.135
This very cautious approach contradicted earlier ICTY jurisprudence. In its review of the
indictment in the Martić case in 1996 and in its judgment in the Kupreškić case in 2000, the
ICTY found that customary law prohibits reprisals against civilians in combat situations
in all types of armed conflicts.136 It invoked several arguments, some of which were more
convincing than others. It first referred to IHL provisions prohibiting reprisals. While as-
suming that articles 51 (paragraph 6) and 52 (paragraph 1) of API were not declaratory of
customary law, it contended that they have subsequently been transformed into general
rules of international law under the pressure of the principle of humanity and the dictates
of public conscience (Martens Clause) and under the influence of human rights law.137 It
pointed to the customary obligation to ‘respect and ensure respect’ for IHL ‘in all circum-
stances’,138 even when the behaviour of the other party might be considered wrongful.139
It argued that Common Article 3, which belongs to customary law and is applicable in all
130 The ICJ even considered that massacres of civilians as a form of reprisal during the Second World War were
clearly serious violations of the law of armed conflict applicable at the time. See Jurisdictional Immunities of the
State (Germany v Italy; Greece intervening) (Judgment) (3 February 2012) para 52.
131 CIHL commentary on rules 146 and 147.
132 ibid commentary on rule 146. For reservations, see eg UK, Reservations and Declarations made upon rati-
fication of the 1977 Additional Protocol I (28 January 1998) para (m). See also the more ambiguous reservations/
declarations of Egypt (9 October 1992) para 3; France (11 April 2001) para 11; Germany (26 May 1997) 167
para 137; and Italy (27 February 1986) para 10 https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/states.xsp?xp_
viewstates=XPages_NORMstatesParties&xp_treatySelected=470.
133 For instance, Egypt, France, and Germany have since considered that reprisals against civilians in the con-
duct of hostilities is prohibited. See: Egypt, Written statement submitted to the ICJ, Nuclear Weapons (Advisory
Opinion) (20 June 1995) para 46; France, Ministère de la Défense (above n 111) 85; Germany, Bundesministerium
der Verteidigung, Druckshrift Einsatz n 03, Humanitäres Völkerrecht in bewaffneten Konflikten—Handbuch, DSK
SF009320187, RII3 (Bundesministerium der Verteidigung 2006) 4.
134 See eg US Department of Defense (DoD), Law of War Manual (Department of Defense June 2015, updated
December 2016) 1115–16 para 18.18.3.4. See also (more narrowly) Italy, Ufficio Adestramento e Regolamenti,
Manuale di diritto umanitario, Intro and Vol I, Usi e Convenzione di Guerra, SMD—G-014, Stato Maggiore della
Difesa, I Reparto (Ufficio Adestramento e Regolamenti 1991) paras 23 and 25.
135 CIHL commentary on rule 146. See also rule 147.
136 Martić (Review of the Indictment) (8 March 1996) paras 15–17; Kupreškić (above n 129) paras 527–531.
137 Kupreškić (above n 129) paras 527 and 529.
138 Common Article 1 to the 1949 Geneva Convention; API article 1(1).
139 Martić (Review of the Indictment) (above n 136) para 15.
types of armed conflicts,140 ‘prohibits any reprisals in non-international armed conflicts
with respect to the expressly prohibited acts as well as any other reprisal incompatible with
the absolute requirement of humane treatment’.141 It insinuated that reprisals are a form of
collective punishment, which is prohibited under both treaty and customary law.142 It also
referred to non-binding documents, such as Resolution 2675 (1970) of the UN General
Assembly,143 providing that ‘civilian populations, or individual members thereof, should
not be the object of reprisals’.144 This has been confirmed—albeit much less clearly and
forcefully—in the later Trial Judgment of the Martić case, when the ICTY stated that ‘re-
prisals must be exercised, to the extent possible, in keeping with the principle of the pro-
tection of the civilian population in armed conflict and the general prohibition of targeting
civilians’.145 The International Criminal Court (ICC) agreed with the ICTY that ‘no circum-
stances would legitimize an attack against civilians even if it were a response proportionate
to a similar violation perpetrated by the other party’.146
As for the prohibition of reprisals against civilian objects during the conduct of hostil-
ities, practice seems even less clear.147 In the aforementioned Martić case (Trial and Appeal
Judgment), the ICTY examined whether the shelling of Zagreb could be considered a lawful
reprisal as argued by the Defence.148 Although it was found that this shelling was illegal because
the conditions justifying reprisals had not been met (no ultima ratio, no warning), it implicitly
recognized the possibility of lawful reprisals against civilian objects irrespective of the type of
armed conflict.149
In recent state practice, not many belligerents invoked reprisals to justify IHL violations
in IACs.150 A major exception is to be found in the context of the Iran–Iraq War (1980–1988)
when both belligerent states invoked reprisals to justify attacks against cities belonging to
the adversary.151 The international community vigorously condemned these justifications.152
140 Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of
America) (Judgment) (27 June 1986) para 219.

141 Sentence quoted in the Kupreškić case (above n 129) para 534. This quotation must be attributed to the
International Law Commission. See the Commission’s comments on the former Article 14 of the 2nd Part of the Draft
Articles in Yearbook of the International Law Commission, Vol 2, Part 2 (1995) A/CN.4/SER.A/1995/Add.1 (Part 2) (State
responsibility) 72 para 18. For more information on Common Article 3 and the prohibition of reprisals, see below.
142 Martić (Review of the Indictment) (above n 136) para 16. Kupreškić (above n 129) para 528. On the cus-
tomary prohibition of collective punishment, see CIHL rule 103.

143 UN General Assembly Resolution 2675 (XXV) (9 December 1970).
144 Martić (Review of the Indictment) (above n 136) para 16; Kupreškić (above n 129) para 532.
145 Martić (ICTY Trial Judgment) (above n 129) para 467. Although the armed conflict was probably non-
international at the time, the ICTY did not classify the situation considering that ‘[w]‌hen an accused is charged
with violation of Article 3 of the Statute, it is immaterial whether the armed conflict was international or non-
international in nature’ (para 42).
146 Mbarushimana, ICC (Decision on the Confirmation of Charges) (16 December 2011) para 143 (quoting the
ICTY’s Martić decision of 8 March 1996). (Note that the case concerns a NIAC, but the ICC considers that reprisals
against civilians are always prohibited irrespective of the type of armed conflict). See further below on NIACs.
148 Martić (ICTY Trial Judgment) (above n 129) paras 464–468 and (Appeal Judgment) (2008) paras 263–267.
149 Martić (ICTY Trial Judgment) (above n 129) para 468.
151 Iraq, Letter dated 2 May 1983 to the UN Secretary General, UN Doc S/15743 (4 May 1983); Iraq, Letter dated 18
February 1987 to the UN Secretary General, UN Doc S/18704 (18 February 1987); Islamic Republic of Iran, Letter dated
2 February 1987 to the UN Secretary General, UN Doc S/18648 (2 February 1987); Islamic Republic of Iran, Letter dated
24 February 1987 to the UN Secretary General, UN Doc S/18721 (25 February 1987); Islamic Republic of Iran, Minister
of Foreign Affairs, Letter dated 27 February 1987 to the UN Secretary General, UN Doc S/18728 (27 February 1987);
Islamic Republic of Iran, Letter dated 24 June 1987 to the UN Secretary General, UN Doc S/18945 (24 June 1987).
152 See UN Secretary General, Message dated 9 June 1984 to the Presidents of the Islamic Republic of Iran and
the Republic of Iraq, UN Doc S/16611 (11 June 1984); UN Security Council, Statement by the President, UN Doc
Regarding NIACs, applicable IHL treaty provisions do not refer to the concept
of reprisals at all. However, Common Article 3 and Common Article 4 of APII spe-
cify that persons taking no active part in hostilities shall ‘in all circumstances’ be
treated humanely and that acts such as violence to life and person, collective punish-
ment, hostage taking, and outrages upon personal dignity shall remain prohibited ‘at
any time and in any place whatsoever’. APII contains similar additional absolute
prohibitions.153 The ICRC and the ICTY, as well as numerous commentators, have in-
terpreted these provisions as implying that reprisals involving the prohibited acts are
also prohibited.154
What is more controversial is whether all other types of reprisal are equally prohibited
in NIACs. According to the ICRC, the concept of belligerent reprisals ‘has never material-
ized in non-international armed conflicts’, as it originates from state practice dating back
to the nineteenth and early twentieth centuries and pertaining to IACs exclusively.155
The travaux préparatoires of APII somehow support this argument. Suggestions made
at the time to prohibit certain reprisals in APII (as in API) were rejected because, for
many states, the very concept of belligerent reprisals had no place in NIACs.156 The inter-
national community has also often condemned reprisals in the context of NIACs.157 The
ICRC therefore considers that customary law prohibits reprisals altogether in the context
of NIACs.158
This view is not shared by everyone. The ICTY has considered that reprisals are pos-
sible if they fulfil stringent conditions and are as far as possible in keeping with the pro-
hibition of targeting civilians.159 Most authors seem to hold the view that belligerent
reprisals might be applicable in NIAC, but be subject to stringent conditions (whose
legal basis varies depending on authors).160 For instance, Cassese maintained that ‘there
is no logical obstacle’ to prevent the use of reprisals by parties to a NIAC as a means to
enforce APII, except for those provisions that demand obedience ‘in all circumstances’
or ‘at any time and in any place whatsoever’.161 This possibility for lawful reprisals would
be subject to stringent conditions derived from the object and purpose of APII and
S/PV.2798 (16 March 1988) 2; ICRC, Press Release No 1479: ‘Iran–Iraq War: ICRC Appeals to Belligerents’ (15
December 1983); ICRC, Press Release No 1489: ‘Bombing of Iraqi and Iranian Cities’ (7 June 1984).
153 See APII article 7 (humane treatment of wounded, sick and shipwrecked in all circumstances), article
10(1) (no punishment for having carried out medical activities compatible with medical ethics under no
circumstances), article 11 (respect and protection of medical units and transports at all times unless they
are used to commit hostile acts), and article 12 (respect of the distinctive emblem in all circumstances). See
also Antonio Cassese, ‘The Status of Rebels under the 1977 Geneva Protocol on Non-International Armed
Conflicts’ (1981) 30 ICLQ 434.
154 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 edn, ICRC 2016) (ICRC Commentary 2016) commentary
on Common Article 3, para 905; AP Commentary para 4530; Michael Bothe, Karl Josef Partsch, and Waldemar
A Solf (eds), New Rules for Victims of Armed Conflicts (Martinus Nijhoff 2013) 731; Cassese (above n 153) 435.
See also: Martić (Review of the Indictment) (above n 136) para 16; Kupreškić (above n 129) para 534; cf Veronika
Bilkova, ‘Belligerent Reprisals in Non-International Armed Conflicts’ (2014) 63 ICLQ 155–7.
155 See ICRC Commentary 2016, Common Article 3, para 905; CIHL rule 148.
157 See eg UNGA Resolutions 48/152 (20 December 1993) para 8 and 49/207 (23 December 1994) para 9.
158 CIHL rule 148.
159 Martić (ICTY Trial Judgment) (above note 129).
160 For a careful review of existing literature on the topic, see Bilkova (above n 154) 31–65.
161 Cassese (above n 153) 433–4.
conforming with the general requirements governing countermeasures under general
international law. As Bilkova aptly puts it:
Views on belligerent reprisals in NIAC are divided in both the case law and the literature.
There is disagreement whether the institution applies in NIAC at all. Opinions range from
a clear yes by the ICTY, through a hesitant probably by some scholars, to a reluctant no by
the ICRC and other scholars.
However, instances where belligerent parties officially referred to belligerent reprisals to

justify IHL violations in NIACs have not been identified.162
In practice, it appears that most of the time reprisals were useless and counterproductive.
Even the US Law of War Manual (2015–2016), which boldly contends that ‘reprisals are
generally permissible under customary international law’,163 recognizes that, in practice,
‘reprisals frequently lead only to further unwanted escalation of the conflict by an adver-
sary or a vicious cycle of counter-reprisals’.164 As such, reprisals are probably one of the
most ineffective and dangerous means of enforcing IHL. It therefore may legitimately be
asked whether belligerent reprisals can still be considered to strike a fair balance between
the principles of military necessity and humanity. Can they ever respect the ‘principles of
humanity and the dictates of public conscience’ as set forth in the Martens Clause? Are they
not the remainder of an obsolete concept of reciprocity in respect of IHL, which threatens
the very humanitarian purpose of that body of law? It is striking that the International Law
Commission’s Articles on State Responsibility provide that countermeasures ‘shall not af-
fect . . . b) obligations for the protection of fundamental human rights; c) obligations of a hu-
manitarian character prohibiting reprisals; d) other obligations under peremptory norms
of general international law’.165 Insofar as the prohibition of arbitrary killings as well as of
cruel inhuman, and degrading treatment are fundamental human rights, whose peremp-
tory character has often been recognized, the continued relevance of belligerent reprisals
jeopardizing those rights is questionable. At the very least, it is to be hoped that state prac-
tice will continue to develop, de lege ferenda, towards the complete prohibition of reprisals.
C. Destruction and Seizure of Property
Article 23(g) of the 1907 Hague Regulations provides that it is prohibited ‘to destroy or
seize the enemy’s property, unless such destruction or seizure be imperatively demanded
by the necessities of war’.166 Under the 1949 Geneva Conventions, ‘extensive destruction
162 See ICRC Commentary 2016 on Common Article 3, para 905; Bilkova (above n 154) 49.
163 US DoD (above n 134) 1096.
164 ibid) 1099. See also Australia, Australian Defence Force, Manual on Law of Armed Conflict, Operations
Series, ADFP 37, Interim edn (Australian Defence Force Publications 1994) para 1310; Kenya, School of Military
Police, Law of Armed Conflict, Military Basic Course (ORS) Précis No 4 (School of Military Police 1997) 4; Sweden,
Swedish Ministry of Defence, International Humanitarian Law in Armed Conflict, with Reference to the Swedish
Total Defence System (Swedish Ministry of Defence 1991) section 3.5, 89; UK, Ministry of Defence, The Law of
Armed Conflict, D/DAT/13/35/66, Army Code 71130 (rev edn, Ministry of Defence 1981) section 4, 17.
165 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts
(2001) article 50.

166 This rule can also be found in older documents, such as the Lieber Code articles 15–16 and the Brussels
Declaration article 13(g).

and appropriation of property, not justified by military necessity and carried out unlaw-
fully and wantonly’ is a grave breach of the Geneva Conventions.167 This provision only
concerns property that is ‘protected’ by the Geneva Conventions, such as fixed medical es-
tablishments and mobile medical units,168 hospital ships,169 medical transports, including
medical aircraft,170 or objects and property in occupied territory.171 Article 53 of the Fourth
Geneva Convention generally protects ‘real or personal property belonging individually to
private persons of an occupied belligerent state or to other public authorities’.172 The term
‘destruction’ is not defined under IHL, but it has been understood as setting fire to a pro-
tected object, attacking it, or otherwise seriously damaging it.173 The destruction does not
need to be committed within the context of military action, but it must be closely related
to the hostilities.174 The ‘appropriation’ of protected property can also be defined broadly
and does not require a formal transfer of property title.175 It covers the ‘taking, obtaining
or withholding of property, theft, requisition, plunder, spoliation and pillage’.176 Pillage is
a form of unlawful appropriation for private or personal use, which is also prohibited in
separate IHL provisions.177 Although the provision reads ‘destruction and appropriation’,
it is clear that the drafters’ intent was to criminalize the two acts separately rather than only
cumulatively.178
To constitute a grave breach the destruction or appropriation must be (i) extensive; (ii)
not justified by military necessity; (iii) carried out unlawfully; and (iv) wantonly.
First, the extent of the destruction/appropriation must be assessed on a case-by-case
basis.179 Usually, this criterion will be fulfilled when there is repeated unlawful destruction
or appropriation, as made clear by the French translation of ‘extensive’ that is ‘executées
sur grande échelle’. In exceptional cases, though, a single act, such as the destruction of a
hospital, may suffice.180 We can conclude that the extensive character of the criminalized
acts might be either a quantitative criterion (number of destructions/appropriations) or a
qualitative criterion (importance of the object’s value).181 Less numerous/serious forms of
167 GCI article 50; GCII article 51; GCIV article 147. See also Rome Statute article 8(2)(b)(xiii).
168 GCI articles 19, 33, and 34; GCII articles 11 and 23; and GCIV article 18.
169 GCI article 20; GCII articles 22 and 24.
170 GCI articles 35 and 36; GCII articles 38 and 39; GCIV article 22.
171 Kordić and Čerkez (ICTY Judgment) (26 February 2001) para 341.
172 GCIV article 53 only applies to occupied territories as defined in the Hague Regulations article 42. Article
23(g) of the Hague Regulations is thus wider in scope. The destruction of property situated on enemy territory
may nevertheless be considered a war crime (but not a grave breach). See Kordić and Čerkez (above n 171) paras
335–341 and 347.
173 ICRC Commentary 2016 para 3009.
174 Hadžihasanović (ICTY Judgment) (15 March 2006) para 46.
176 ibid.
177 For the specific provisions on pillage, see: Hague Regulations articles 28 and 47; GCIV article 33(2);
APII article 4(2)(g). On the customary character of the prohibition of pillage, see: CIHL rule 52. See also ICC,
Review Conference of the Rome Statute of the International Criminal Court (Kampala 31 May–11 June 2010) (ICC
2010) (‘Elements of Crimes’), which specify that pillage is done ‘for private or personal use’ (Rome Statute article
8(2)(b)(xvi) and (e)(v)).
178 ICRC Commentary 2016 para 3008. See also the Rome Statute, which has reformulated the crime in the
following manner: ‘destroying or seizing the enemy’s property unless such destruction or seizure be imperatively
demanded by the necessities of war’ (Rome Statute article 8(2)(b)(xiii) and article 8(2)(e)(xii)).
179 ICRC Commentary 2016 para 3014; Blaškić (ICTY Trial Judgment) (3 March 2000) para 157.
180 Ibid. See also Brđanin (ICTY Trial Judgment) (1 September 2004) para 587; Prosecutor v Naletilić and
Martinović (Trial Chamber Judgment) (Naletilić case) (31 March 2003) para 576; Prlić (ICTY Trial Judgment) (29
May 2013) para 126.
181 See, in this sense, Hadžihasanović (above n 174) para 43.
destruction/appropriation are still prohibited and might still amount to war crimes, but not
to grave breaches.182
Second, destruction/appropriation must not be justified by military necessity. While
contemporary IHL does not permit invoking military necessity to justify violations of IHL,
the principle is still operational where the relevant treaty norm contains a derogatory clause
in favour of military necessity.183 Thus, where IHL expressly permits the destruction/ap-
propriation of civilian property, the scope and extent of such destruction/appropriation is
limited by considerations of military necessity. Except for interpretative purposes, this cri-
terion does not have much normative value.
Third, the destruction/appropriation must be unlawful ‘under the specific standards per-
taining to the primary obligations’ of IHL.184 For instance, the destruction by an occupying
power of a private house is unlawful, except where such destruction is rendered absolutely
necessary by military operations as specified in the relevant provision.185 Similarly, the ap-
propriation of the property belonging to aid societies is unlawful except in case of urgent
necessity, and only after the welfare of the wounded and sick has been ensured.186
Finally, the destruction/ appropriation must be committed ‘wantonly’. This mental
element has been understood as prohibiting not only the intentional commission of the
criminalized act but also recklessness.187
Several accused individuals were found guilty by the ICTY for unlawful destruction and
appropriation of property.188 For instance, in the Blaškić case, the accused was found guilty
of a grave breach of the Geneva Conventions for extensive destruction of Bosnian Muslim
dwellings, buildings, businesses, private property, and livestock between January 1993 and
September 1993.189
Although Common Article 3 and APII do not address the aforementioned issue as such,
the prohibition of destroying or seizing the enemy’s property unless such destruction or
seizure be imperatively demanded by the necessities of war has been considered as cus-
tomary law for both IACs and NIACs.190 It has also been criminalized in the ICC Statute for
Non-International Armed Conflicts.191
Regarding occupied territories, additional specific rules apply and complement the
general prohibition of unlawful destruction/appropriation of property discussed above.
They are essentially stated in the 1907 Hague Regulations.192 The legal framework differs
182 ibid para 44; ICRC Commentary 2016 para 3015.

183 ICRC Commentary 2016 para 3013. See also Nils Melzer, Targeted Killing under International Law (OUP
2008) 280–2 (and additional references therein).
185 GCIV article 53.
186 GCI article 34(2).
187 ICRC Commentary 2016 para 3016. See also See Brđanin (above n 180) para 589; Naletilić case (above n
180) para 577(iv) and n 1440; Kordić and Čerkez (above n 172) para 341(iii); and Prlić (above n 181) paras 127
and 131.
188 Blaškić (above n 180); Kordić and Čerkez (above n 171); Naletilić case (above n 180).
189 Blaškić (above n 180).
190 See CIHL rule 50; Hadžihasanović, ICTY (Decision on Motions for Acquittal Pursuant to Rule 98 bis of the
Rules of Procedure and Evidence) (27 September 2004) para 104.

191 Rome Statute article 8(2)(e)(xii).
192 In ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory
Opinion) (9 July 2004) (Palestinian Wall case) para 124, the ICJ considered that article 23(g) of the Hague
Regulations was not pertinent regarding the situation in the West Bank, since this article is located in section II
dedicated to ‘hostilities’. Pertinent rules were found thus exclusively in section III dedicated to occupation (see art-
icles 46 and 52).
depending on the type of property. Movable public property which may be used for mili-
tary operations, such as cash, arms, or means of transport, may be confiscated, or in other
words, taken without compensation.193 There is an exception to this rule: the property
of municipalities and of institutions dedicated to religion, charity and education, the
arts and sciences, including historic monuments and works of art and science, cannot
be seized, destroyed, or wilfully damaged.194 Immovable public property, such as public
buildings, real estate, forests, and agricultural estates, may not be confiscated by the occu-
pying power. The latter must administer these properties according to the rules of usufruct
and safeguard their capital.195 Private property must be respected (and therefore not des-
troyed) and cannot be confiscated.196 However, private property that may be used as war
material—such as telecommunication and radio equipment, cars, arms, munitions, etc—
may be seized, but must be restored and compensated for after the war.197 Requisitions in
kind and services may also be carried out provided that: (i) they are done for the needs of
the army of occupation; (ii) they are in proportion to the resources of the country; (iii)
they do not involve obliging civilians to take part in military operations against their own
country; (iv) they are requested by the military commander in charge of the region; and
(v) contributions in kind must as far as possible be paid for in cash as soon as possible.198
The aforementioned rules are considered as customary law for situations of belligerent oc-
cupation.199 There are no equivalent rules for NIACs.200 The issue must therefore be ana-
lysed under domestic law.201
Regarding related judicial practice, two examples can be provided. In the Palestinian
Wall Advisory Opinion, the ICJ found—without much elaboration—that the construction
of the wall had led to the destruction or requisition of private Palestinian properties in a
manner that was not consonant with articles 43, 46, and 52 of the 1907 Hague Regulations,
and with article 53 of the Fourth Geneva Convention.202 Furthermore, the Eritrea–
Ethiopia Claims Commission considered that Ethiopia, as an occupying power in Tserona
Town in 2000–2001, had violated articles 43, 46, and 47 of the 1907 Hague Regulations
when it ‘permitted’—or rather did not prevent—the unlawful looting and ‘stripping’ (ie
demolition) of buildings.203 The commission argued that this was the case regardless of
whether these acts had been committed by Ethiopian military personnel or by civilians.204
Finally, for the sake of completeness, it should be recalled that the general rules on the
conduct of hostilities, including the basic principle of distinction, are also relevant to deter-
mine which objects are protected from direct attacks and therefore from being destroyed.
This point will not be elaborated upon here as it has already been extensively discussed
elsewhere.205
193 Hague Regulations article 53(1).

199 CIHL rule 51.
200 ibid.
201 ibid.
202 See ICJ (n 192) paras 124, 126, 132, and 135.
203 Eritrea–Ethiopia Claims Commission, Central Front, Eritrea’s Claim, Partial Award (28 April 2004) para 67.
204 ibid.
205 See c hapter 7 ‘International Humanitarian Law and the Conduct of Hostilities’ in this book.
5. Conclusion
The right of belligerents to choose methods of warfare, ie any particular manner of using
weapons or of otherwise conducting hostilities, remains both limited and strictly regulated
under IHL. The belligerents are governed by general principles applicable to all military
operations, most notably the principles of distinction and the prohibition of superfluous
injury or unnecessary suffering, both of which have undisputed customary status in both
IACs and NIACs.
By virtue of these principles, numerous specific methods of warfare have been prohib-
ited/restricted by IHL treaty provisions. The rationale underlying the restriction or prohib-
ition of certain methods of warfare can be either to protect combatants from superfluous
injury or unnecessary suffering, or to protect civilians against the effects of the hostilities.
Examples for the first category, protecting primarily combatants, include the prohibition of
attacking persons hors de combat, the prohibition of denial of quarter, and the restriction
on the use of deception. Examples for the second category primarily protecting the civilian
population and civilian objects include the prohibition of starvation, reprisals, and destruc-
tion and seizure of property as methods of warfare.
Although IHL provisions regulating methods of warfare are much scarcer in treaties ap-
plicable to NIAC rather than IAC, this difference can often be compensated by taking into
account customary law. Normally, a resort to prohibited methods of warfare not only entails
state responsibility but also individual criminal responsibility. Thus, individuals have been
prosecuted both at the national and the international level for having resorted to prohib-
ited/restricted methods of warfare.
While this view may still be disputed by some states, the fact that a specific method of
warfare is not prohibited or restricted by a specific treaty provision does not necessarily
mean that this method is lawful. On the contrary, any method of warfare that has not been
subject to specific treaty regulation can also be restricted or prohibited based on the prin-
ciples of distinction and the prohibition on superfluous injury or unnecessary suffering.
In practice, the legality of new methods of warfare must continuously be examined in
light of these and other relevant legal principles, even if they are not (or not yet) prohibited
by specific treaty provisions. Article 36 of API provides that:
[i]n the study, development, acquisition or adoption of a new weapon, means or method
of warfare, a High Contracting Party is under an obligation to determine whether its
employment would, in some or all circumstances, be prohibited by this Protocol or by any
other rule of international law applicable to the High Contracting Party.
This obligation also applies to states which are not parties to API because they are legally
responsible for ensuring that they do not use prohibited weapons or use lawful weapons in
a manner that is prohibited.206
Article 36 of API implies that when developing new weapon systems (means of war-
fare), belligerent parties must ensure that they do not endanger compliance with existing
206 Melzer, International Humanitarian Law (above n 16) 122. Arguably, this duty can also be derived from
the Martens Clause, which is considered to be customary law: Melzer, International Humanitarian Law (above n
16) 123.
prohibitions/restrictions in terms of methods of warfare. For instance, when developing
increasingly autonomous weapons systems, states must ensure that they will be capable
of being used in compliance with the prohibition of indiscriminate attacks, with the pro-
hibition of attacking persons hors de combat, or with the prohibition of denial of quarter.
Hypothetically, if soldiers were to be replaced by robots exclusively capable of killing, but
not capturing, enemy combatants, this would likely raise serious issues under the prohib-
ition of denial of quarter. In addition, new ‘methods’, such as human enhancement (eg
chemical ‘hardening’ of soldiers or resort to nano-technologies to render troops invisible)
might give rise to new legal challenges, such as whether these methods unduly affect the
physical/mental integrity of belligerents’ own forces; an issue traditionally not governed by
IHL, given its focus on ensuring minimal protection to the enemy. In light of the speed
of technological evolution and the unlimited inventiveness of the human mind, however,
it may safely be assumed that ensuring the compliance of new methods of warfare with
longstanding and fundamental principles of IHL will give rise to considerable challenges
both in law and in practice.

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10

Petersburg (29 November–​11 December 1868) (St Petersburg Declaration).

2. Defining and Regulating Methods of Warfare

A. Defining Methods of Warfare

The notion of ‘methods of warfare’ is mentioned several times in Additional Protocol

B. Regulating Methods of Warfare

23 API article 48; CIHL rule 1.

icle 8(2)(b)(i)(ii)(iv) and 8(2)(e)(i).

28 CIHL commentary on rule 70.

Injury or Unnecessary Suffering’ (ICRC 1997).

UNTS 370 (CCW Protocol IV).

[e]‌lementary considerations of humanity and common sense make it preposterous that

(above n 22) 33–​4; CIHL commentary on rules 70 and 71.

3. Methods of Warfare that Concern Primarily the Protection

A. Protection of Persons hors de combat

Humanitarian Law, ICRCH DPH Guidance (ICRC 2009) 27.

mitted that it should also be considered a crime in NIACs.

60 API article 41(1) and (2); CIHL rule 47.

B. Prohibition of Denial of Quarter

Another longstanding rule that is related to the protection of persons hors de

69 Melzer, International Humanitarian Law (above n 16)106.

combatant hors de combat separately from the denial of quarter.

1. The prohibition of perfidy or treachery

article 13 (b); Oxford Manual article 8(b).

2. Misuse of emblems, signs, and uniforms

93 API article 37.

Modern IHL prohibits the starvation of civilians as a method of warfare, ie deliberately

(1) respond to a prior serious of IHL violations (no ‘anticipatory/​preventive’ reprisal);

America) (Judgment) (27 June 1986) para 219.

tomary prohibition of collective punishment, see CIHL rule 103.

However, instances where belligerent parties officially referred to belligerent reprisals to

C. Destruction and Seizure of Property

(2001) article 50.

Declaration article 13(g).

182 ibid para 44; ICRC Commentary 2016 para 3015.

Rules of Procedure and Evidence) (27 September 2004) para 104.

193 Hague Regulations article 53(1).

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Petersburg (29 November–11 December 1868) (St Petersburg Declaration).

(above n 22) 33–4; CIHL commentary on rules 70 and 71.

1. The prohibition of perfidy or treachery

2. Misuse of emblems, signs, and uniforms

(1) respond to a prior serious of IHL violations (no ‘anticipatory/preventive’ reprisal);