As the definition of civilian objects is provided in a negative form – that is, civilian objects are all things that are not military objectives – we are left with two main alternatives. Either a piece of code such as Stuxnet is a ci- vilian object or, given that the problem is with the term “object” itself, it is not covered by the definition of military objectives at all. Given that the object and purpose of both the principle of distinction and of the Addi- tional Protocol itself is to provide effective protection for civilians and ci- vilian objects while enabling parties to an armed conflict to conduct effec- tive military operations, either of those alternatives produces a manifestly unreasonable result. In order to conduct efficient military operations against cyber targets while minimising the harm to civilians and civilian ob- jects, it will sometimes be necessary to conduct attacks against code rather than the physical infrastructure on which it rests. Any modern interpreta- tion of the law should reflect this necessity and allow for that to happen. 34
instruments, and in the jurisprudence of various judicial organs established under those instruments. 25 Such emergency situations are the only permissible derogation from the prohibition against arbitrary deprivation of life. Furthermore, because killing is not permitted to be the sole objective of any measures taken in derogation from the prohibition, targeted killing is, by its very definition, unlawful under the international human rights law paradigm. O’Connell submits that drones, as a weapons delivery platform, employ military force, and so are, “therefore lawful only in armed conflict hostilities.” 26 O’Connell’s arguments are clearly based, it is submitted, on US targeting practices to date, where drones have been used to target terrorist suspects posing no apparent imminent threat. By way of example, let us consider the first targeted killing by means of an armed drone strike outside a theatre of armed conflict hostilities, which is believed to have occurred on 3 rd November 2002, in Yemen. The target was Qaed Senyn al-Harithi (also known as Abu Ali). Al-Harithi was the suspected mastermind of the attack on the USS Cole in October 2000. 27 Al-Harithi and five other suspected Al-Qaeda militants were killed when a drone operated by the CIA launched two Hellfire missiles, destroying the jeep in which the men were travelling, in the northern province of Marib, 160 kilometres east of the capital, Sana’a. 28 In response to the drone strike that killed al-Harithi and his associates, the then UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Killings, Asma Jahangir, reported that the incident constituted, “a clear case of extrajudicial
Rape is a serious crime being committed during a conflict situation on women, who generally have a lower social and economic status than men. In a conflict situation, rape has been addressed as a serious problem that has posed deep threat to the women. As women are not generally active participants in a conflict, they become the easiest target for several reasons. Sometimes the purpose is to weaken the opposite parties by targeting the women and exploiting them and raping them in order to show strength. And at times rape is committed to breakdown the moral of the conflicting party as women are regarding as the symbol of ethnicity of a community or group or state. Rape is not only an issue concerning with women physically but it is the issue that has the most adverse psychological, sociological and emotional affect on a woman and the impact of the crime is long lasting and turbulent.
Opinions of course differ on whether the idea of such a global NIAC is legally tenable. In my view, even under a flexible interpretation of the IHL framework, which would allow for various kinds of cross-border NIACs, the idea of a global NIAC is an oxymoron. Any NIAC requires the existence of protracted armed violence which by definition has to take place somewhere, i.e. has to be localized at least to the territory of one state. That violence can spill over to the territory of another state (which need not necessarily be adjacent to the primary state), but there has to be a nexus to the protracted violence in the primary state for IHL to apply to that violence. 81 Thus, while one can safely speak of a NIAC (or NIACs) between the United States and the Taliban and other armed groups in Afghanistan, and while that conflict can spill over into say Pakistan or any other country – and arguably still be regulated by IHL – the existing legal framework does not seem to allow for a construction as amorphous as a planet-wide NIAC, 82 particularly one in which a loose terrorist network such as Al-Qaeda is treated as a single organizational entity and belligerent party. 83 All of the difficulties in squaring the US conflict with Al-Qaeda with the NIAC legal regime stem precisely from the fact that this regime was not designed to regulate anything like it. 84
Since there were a number of mistakes in targeting in Kosovo, the principle of feasible precautions seems to be the one most clearly deviated from during the air campaign. The mistakes included the two air strikes hitting a train on the Grdelica bridge in southern Serbia on April 12; an attack on vehicles in a convoy of refugees near Djakovica in Kosovo on April 14; an attack south of Belgrade on April 28 hitting a residential area instead of army barracks; an at- tack against the Lusana Bridge north of Pristina on May 1 hitting a civilian bus; a cluster bomb attack against the Nis airfield on May 7 hitting a market place and a hospital; and the attack on the Chinese Embassy in Belgrade on May 8. In the case of the Embassy, NATO used inaccurate intelligence infor- mation and believed that it was attacking the Federal Directorate of Supply and Procurement for the Yugoslav Army. Further cases where there may have been a lack of necessary precautions are the bombing of the village of Korisa in Kosovo on May 13, the attack on the Varvarin bridge in Serbia on May 30, and the attack against military barracks in Surdulica on May 30 in which a hospital was struck. In all these attacks there were civilian casualties. 12
106. Compare Geoffrey Corn et al., Belligerent Targeting and the Invalidity of a Least Harmful Means Rule, 89 I NTERNATIONAL L AW S TUDIES 536, 540 (2013) (offering a comprehensive rebuttal of the least harmful means interpretation), and Michael N. Schmitt, Wound, Cap- ture, or Kill: A Reply to Ryan Goodman’s ‘The Power to Kill or Capture Enemy Combatants’, 24 E U- ROPEAN J OURNAL OF I NTERNATIONAL L AW 855, 855 (2013) [hereinafter Schmitt, Reply to Ryan Goodman] (arguing that, even under narrow circumstances, there is no obligation un- der the extant internationalhumanitarianlaw to wound rather than kill enemy combatants nor to capture rather than kill), with Ryan Goodman, The Power to Kill or Capture Enemy Combatants: A Rejoinder to Michael N. Schmitt, 24 E UROPEAN J OURNAL OF I NTERNATIONAL L AW 863, 863–66 (2013) (addressing the author’s points of agreement and disagreement with Michael N. Schmitt’s assertion that there exists no obligation under internationalhumanitarianlaw to capture rather than kill enemy combatants), and Jens David Ohlin, The Duty to Capture, 97 M INNESOTA L AW R EVIEW 1268, 1272 (2013) (examining four potential reasons why the duty to capture might be thought to apply to targeted killings).
. 2 Without a legal guarantee that they will not be made the object of attack once they have laid down their weapons and submitted themselves to the authority of their enemy, there would be no incentive for those persons engaged in hostilities to surrender and fights to the death would invariably ensue, thereby prolonging armed conflict and fuelling unnecessary violence and suffering. Given the centrality of the rule of surrender to realising the humanitarian objective of internationalhumanitarianlaw, it is paramount that those involved in armed conflict are aware of what conduct constitutes an act of surrender under internationalhumanitarianlaw and thus when its attendant legal obligation to ceasefire is triggered. More specifically, questions arise as to what conduct signals an intention to surrender: for example, is the waiving of a white flag indicative of surrender? Is retreat tantamount to surrender? Another important question is whether combatants are required to offer vanquished forces the opportunity to surrender before direct targeting can commence? Also, must all offers of surrender be accepted or are there circumstances in which an offer of surrender can be permissibly refused?
lex specialis. With regard to the issue of whether there should be an elimination of distinction between international and non-international armed conflicts it can be said that even though there have been strong and valid arguments in favour of the elimination of the distinction, the distinction still exists. One of the main reasons for the existence of this distinction is the view by States that if non-international armed conflicts are equated with international armed conflicts then it would undermine State sovereignty and in particular national unity and security. States have been very concerned and were reluctant in eliminating the distinction since according to them treating non-international armed conflicts in the same way as international armed conflicts would encourage secessionist movements by giving them status under internationallaw and also restrain the powers of the State in seeking to put down the rebellions. 71 For instance, if the rule of combatant immunity, which prevents prosecutions of combatants merely for taking part in armed conflict, which is applicable in international armed conflicts, is made applicable to non-international armed conflicts then States would not able to criminalize acts, which are traditionally regarded as constituting treason. These concerns of the States have been reflected in treaties as well, like the inclusion of Article 3 in Additional Protocol II according to which nothing in the Protocol restricts the responsibility of the State ‘by all legitimate means, to maintain or re-establish law and order.’ 72
This article has been particularly concerned with superiors’ failure to prevent war crimes following a degradation of the rule of law. Customary internationalhumanitarianlaw, as interpreted by the ad hoc tribunals, offers an effective framework for accountability over superiors who fail to heed warning signs that undisciplined subordinates will continue to take part in criminal misconduct and potentially escalate their unlawful behavior. The framework may be used to attach liability to commanders who ignore activities that tend to degrade or dehumanize civilians or prisoners, although such conduct might not, in itself, be subject to a duty to punish. International tribunals appear largely willing to criminally sanction superiors who ignore deteriorating conditions within units due to the serious corrosion of good order and discipline.
Internationalhumanitarianlaw (“IHL”), or the law of armed conflict (“LOAC”), is a branch of internationallaw designed to regulate the conduct of belligerent states during an armed conflict.  However, conflicts in the modern era are drastically different than the interstate hostilities envisioned at the time the bulk of IHL was developed. Contemporary conflicts, such as the 'War on Terror' between states and non-state actors, have resulted in new military tactics to address the complications inherent in these modern conflicts. The controversial use of targeted killing is amongst these new tactics. For the purposes of this discussion, targeted killing is the “intentional slaying of a specific alleged terrorist or group of alleged terrorists undertaken with explicit governmental approval where they cannot be arrested using reasonable means.”  The inability to arrest suspected terrorists reflects the transnational aspect to these conflicts as the victim state is unable to exert enforcement jurisdiction beyond its borders.  Until such time as new
Chapter 6 engages with the recent history of conflict and international intervention in South Sudan. South Sudan is a global site where international actors struggle with distinction in the context of an integrated UN mission with a robust Protection of Civilians (PoC) mandate. Civilianness is shown to be a beleaguered concept in South Sudan, and internationalhumanitarian actors want to do everything they can to claim the highest degree of civilianness possible. As UN integration policies and structures encourage different kinds of international actors to work together towards a common goal of peace, many of the same dynamics explored in Part II arise. Additionally, humanitarian actors live and work inside displacement settings (‘PoC sites’) that are guarded by armed UN forces, and humanitarian actors must navigate daily decisions about military asset use. This chapter revisits previous discussions of humanitarian distinction practices, describing the specific form they take in the Kinetic realm. A key difference between the Pedagogical and Kinetic realms is that, in the operational context of the latter, the explicit appeal to law mostly slips away; international actors focus instead on the need to appease the ‘phantom local’. Humanitarian signs and symbols play a crucial role here, and this study highlights two relevant critiques from the scholarly literature. First, there are charges that humanitarian actors visually distinguish themselves primarily for marketing or branding purposes. Second, there are allegations that safeguarding humanitarian symbols overshadows the importance of assisting populations in need. These critiques resurface in the empirical findings from South Sudan, and it is often humanitarian actors, themselves, who express these misgivings.
174. Western Sahara Campaign UK, supra note 4, ¶ 72. On the characterization of West- ern Sahara as occupied territory, see Saharawi Arab Democratic Republic and Another v. Owner and Charterers of the MV ‘NM Cherry Blossom’ and Others 2017 (5) SA 105 (ECP) at 11 para. 40 (S. Afr.); see also Christine Chinkin, Laws of Occupation, in M ULTILATERALISM AND I NTERNA- TIONAL L AW WITH W ESTERN S AHARA AS A C ASE S TUDY 167 (Neville Botha, Michèle Oliv- ier & Delarey van Tonder eds., 2010); B ENVENISTI , supra note 5, at 171–72; Ben Saul, The Status of Western Sahara as Occupied Territory under InternationalHumanitarianLaw and the Exploi- tation of Natural Resources, 27 G LOBAL C HANGE , P EACE & S ECURITY 301 (2015).
in considering this proposal, it should keep some perspective. The United States is not subject to any human rights court or tribunal with the power to enforce a judgment against it. And, the option of simply ignoring, or acknowledging while opposing, the pronouncements of a treaty body is always available to the United States. To be sure, there are costs to a find- ing of responsibility by a human rights institution and to refusing to bring its conduct more fully into compliance with the views of such body. These include reputational costs (such as loss of prestige) and damage to the United States’ self-image as a rights-respecting nation that adheres to the rule of law. And yet, the concrete implications that would follow from abandoning an increasingly strained argument are minimal, particularly giv- en that the United States is already subject to many of the same legal rules by virtue of other treaties, such as the Geneva Conventions, whose extra- territorial application is uncontested. 148
remit in which the [Court] assesses violations of the ECHR.” 47 She concludes: “Without explicitly recognising that it is appraising the compliance of states with the core principles of IHL in non-international armed conflicts, the [Court] is in fact referring to the main principles of the lex specialis .” 48 and further: “What is remarkable is that the Court applies the detailed provisions applicable in times of international armed conflict to situations of non-international armed conflict.” I hope I have shown in the preceding passages that the Court would very likely have reached a quite different result if it had been confronted with applying IHL to individual commanders. The ECtHR was able to make the findings of fact it did precisely because it was applying different standards within a very different conceptual framework.