The regulation of armed conflict during ancient Rome is captured by Cicero -known proverb from 50 BC: silent enim leges inter arma (the law stands silent in times of war). 14 This rather simplifies the picture because there is evidence that the Romans formulated rudimentary laws of war, such as the prohibition against the use of concealed, barbed and poisoned weapons and the prohibition against attacking religious figures. 15 This being said, the regulation of armed conflict was skeletal and said very little about how surrendering forces had to be treated. As in ancient Greece, combatants that sought to surrender during armed conflict in ancient Rome were in an extremely precarious position and their fate was entirely at the discretion of the opposing force; the offer of surrender could be permissibly refused and combatants A P
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.
is only a technique for resolution of normative conflicts. 62 According to the maxim lex specialis derogate legi generali, a special norm will prevail over the general norm. Yet, the rule is silent as to what is specific and what is general; it does not provide any clear guidance to set apart the lex specialis from the lex generalis. 63 The most common example used to show the relevance of lex specialis is the violation of right to life during an armed conflict. While this example is apt, the principle is of less assistance when it comes to many other issues where both internationalhumanitarianlaw and the international human rights law have to be applied together. For instance, in a non-international armed conflict where there is no agreed status of combatant and there is a potential violation of the right to life, internationalhumanitarianlaw becomes less clear making the application of lex specialis even more difficult. 64 Perhaps due to the difficulty in distinguishing the lex specialis and the lex generalis, the maxim appears to have limited use when dealing with situations of detention during armed conflicts. 65 Hence it can be said that in specific circumstances like that of violation of right to life in an armed conflict, the principle of lex specialis adequately addresses the interplay between the internationalhumanitarianlaw and the international human rights law, however it is of less assistance in dealing with many other complex scenarios that might arise during an armed conflict. 66
Secondly, whichever way the Commission’s suggestion is put, it would have the effect of driving a coach and horses through the principle that interna- tional humanitarianlaw applies equally to both sides in any conflict, without regard to the cause which they espouse or the legality of their action under the jus ad bellum. A State whose forces were resisting humanitarian intervention by another State or group of States would, presumably, be required to comply with the normal rules of internationalhumanitarianlaw (or to display the normally required degree of adherence). It would therefore be entitled to a greater de- gree of latitude than its opponent. The implications of the Commission’s pro- posal in this respect are concealed by the unusual circumstances of the Kosovo conflict. As has already been noted, the FRY did not respond by force against the NATO States (other than by the use of anti-aircraft fire) and did not at- tack the NATO States themselves. It would be naive, however, to assume that the same conditions will necessarily apply in any future humanitarian interven- tion. Indeed, had NATO proceeded to a ground campaign, it would not have been the case in the Kosovo conflict, as the FRY could, and almost certainly would, have put up a strenuous resistance to NATO ground forces.
Contemporary wars and conflicts have been complex in nature. The focus on the study of nature and consequences of conflicts was put forward by the United Nations Organization which brought out a twist in the analysis of conflicts. It is true that every international community has some or the other interest in every conflict, may be because no conflict these days are in isolation. In such situation the role of United Nation becomes very important to make sure every party is satisfied with decisions when it comes to war. To look after the conduct of the parties during a conflict, International organizations have developed certain laws which guarantee human safety to a large extend. One such law is InternationalHumanitarianLaw or the Law of Armed Conflict; basically it regulates the conduct of armed conflicts. Its basic constituent is the Geneva conventions followed by subsequent treaties, case law and customary internationallaw . It also deals with the responsibilities of the parties involved which may include neutral nations and individuals in warfare. Its violations are known as war crime for those nations who are bound by appropriate treaties. There are also other customary unwritten rules of war as well as prohibitions on their conduct when dealing with irregular forces and non-signatories. Internationalhumanitarianlaw operates on a strict division between rules applicable in international armed conflict and those relevant to armed conflicts not of an international nature.
the United States’ own territory. It has been discussed that both arguments do not withstand scrutiny. There is settled jurisprudence of the ICJ in Nuclear Weapons, The Wall, and Armed Activities, that the prohibition against arbitrary deprivation of life contained within Article 6 of the ICCPR and forming part of customary internationallaw continues to apply during a situation of armed conflict, alongside the lex specialis of internationalhumanitarianlaw, and that the test of whether a deprivation of life is arbitrary must be determined by reference to the applicable rules of internationalhumanitarianlaw. 7 Further, it is now almost universally accepted that a state’s obligations under international human rights law apply extraterritorially, and thus the US finds scant support for its assertion to the contrary, sitting as it does at odds with state practice and opinio juris. Outside situations of armed conflict, the use of lethal force is lawful under international human rights law only in those circumstances where it is strictly necessary and proportionate, if it is aimed at preventing an immediate threat to life, and if there is no other means of preventing the threat from materialising. As UN Special Rapporteur Ben Emmerson QC rightly submits, only in the most exceptional of circumstances would it be permissible under international human rights law for killing to be the sole or primary purpose of an operation. 8 As the principal purpose of a drone strike is the employment of lethal force to kill a targeted individual(s), it follows that drone strikes will rarely comply with established
The construction of an international normative system focused on the develop- ment of internationalhumanitarianlaw can be verified throughout several mo- ments in the history of humanity. This is because, intrinsically linked to social facts, the law is conditioned by the behavior of society, which, in turn, is also conditioned by legal norms. From this point of view, it is necessary to clarify that conditioning implies in influencing, interfering, generating the expectation that Law and society will act according to a determined way. Social norms when in- stitutionalized impose certain patterns of behavior that aim to govern and regu- late social life. That is why it ends up interfering in the conduct of people in the social environment. In this way it is certain that society interacts with the law and is influenced by it. Thus, by establishing juridical norms, they shape society; however, this also dictates patterns that comes out of informality, and becomes positive law. It is clear that in order to regulate internal relations and interna- tional relations, the need for specific legal rules is required.
From this dictum it may be concluded that international human rights law and internationalhumanitarianlaw are coextensive. An individual's right to life is protected even during hostilities. However, during an armed conflict, the lex specialis of LOAC is engaged and the permissibility of the loss of life must be assessed against that legal regime. While the ICJ was referring to the threat or use of nuclear weapons, this conclusion is equally applicable to targeted killings. Unless IHL is engaged, the deprivation of life caused by a targeted killing will be arbitrary and impermissible. However, as indicated by the ICJ, there must be an armed conflict before IHL can apply. Thus, as a preliminary issue, the legality of targeted killings will depend on the existence of an armed conflict. The judiciary of the two states that acknowledge using targeted killing, Israel and the United States (“U.S.”),  have both determined that their respective nations are engaged in armed conflicts. The Israeli Supreme Court ruled that Israel is engaged in an
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).
provisions of Article 22 of the 1930 London Treaty for the Limitation and Reduction of Naval Armaments.Under its provisions, submarines, when attacking merchant vessels, are bound by the same rules as those applicable to surface vessels. As a rule, they may not sink or render incapable of navigation a merchant vessel without having first placed passengers, crew and ships papers in a place of safety. For this purpose the ship‟s boats are not regarded as a place of safety unless the safety of the passengers and crew is assured, in the existing sea and weather conditions, by the proximity of land, or the presence of another vessel which is in a position to take them on board.” In practice, the rule was very rarely respected and seems quite difficult to apply in most cases. It may have become obsolete in spite of fact that it is reaffirmed by the San Remo Manual. 12
detract from or compete with Protocol I, because the new protocol would have another scope of application. It would be limited to conflicts of an inter- ventionist nature where the intervening side is a coalition enforcing a man- date against a militarily inferior party to the conflict. The coalition would not be fighting for its national security, vital interests or political survival, but for the purpose of limited crisis management. The new protocol would be limited to peace-enforcement operations conducted on behalf of the international community, or other interventions within the framework of regional crisis management, whether they are labeled humanitarian or not. It is important to state that such a new protocol would not address the jus ad bellum legality of humanitarian or other interventions (it would not introduce a “Just War” doctrine); it would stick to the traditional IHL method of describing a scope of application based on factual circumstances. In this case the scope of applica- tion would be linked to the limited nature of the international armed conflict. Should the State under attack plead self-defense and respond with coun- ter-attacks, thus escalating the level of armed conflict, the limited scope of ap- plication of the new protocol would no longer describe the situation accurately and Protocol I would become applicable. In line with this thinking Michael Hoffman, the American Red Cross Officer for International Humani- tarian Law, has suggested that we may witness emerging rules for “interventional armed conflict,” for example in peace enforcement opera- tions, whether authorized by the UN Security Council or conducted otherwise by regional organizations. 28
Third, our interpretation of the thresholds of application and IHL’s temporal scope will inevitably depend on how, within a particular professional setting (e.g. as domestic or international judges, government officials, military legal advisors, humanitarian activists, or academics), we weigh a number of competing, and evolving, policy considerations. In other words, an analysis of the end of IHL’s application by any given actor is influenced by whether that actor ultimately wants IHL to continue applying, in light of the consequences of continuation or termination. Thus, for example, in Geneva in 1949 most of the humanitarian community (including the ICRC) advocated for a broad applicability of IHL, particularly when it came to hitherto almost unregulated NIACs. Most states, on the other hand, wanted to both heighten the threshold for IHL application in case of NIACs and reduce the substantive scope of IHL rules applicable in NIACs, because they sought to preserve their own freedom to suppress rebellion and internal strife as they saw fit. 3 Today, however, the dovish humanitarians might not want IHL to apply expansively, since they may see it as a departure from concurrently (and if need be extraterritorially) applicable IHRL. Yet now States might precisely want IHL to apply, since they would see it as empowering rather than constraining them, e.g. with regard to targeted killings and preventive detention, allowing them to avoid the more demanding rules of IHRL. 4
In answering the first question, it is noted preliminarily that legal schol- arship has rarely explored the possibility of occupying maritime territory without occupying land territory. Rather, most academics focus on whether the use of naval (and aerial) means may be sufficient to exercise actual au- thority over a portion of adjacent land territory. For instance, the Institute of InternationalLaw stated that an island was under occupation if a State exer- cises actual authority through its navy over its entire coastline even in the absence of any military presence on the island. 100 Although some scholars
During a training session at SWEDINT, a military trainer asks trainees what they would do in situations of hybrid warfare where they cannot discern between civilians and combatants. A UN civilian trainee responds that, following the UN Department of Peacekeeping Operations (DPKO) policy for UN missions, ‘when in doubt, assume someone is civilian’. When the same question arises with respect to international actors, a military trainee proposes dividing international actors into ‘armed versus unarmed’. He points out that this fits with the framework of civil– military relations and ‘it’s the best term we have’. He goes on to note the difficulty of drawing this line when civilian security actors are armed, or when politicians and donors take on the appearance of military actors. Still, he believes that the preferred approach is to situate all international civilians together in one unified category; he includes humanitarian actors in this category, as well. Later, during a chat in the hallway outside the classroom, a civilian trainer at SWEDINT reflects on these exchanges. He proposes that, in theory, anyone should be able to look at international actors and say ‘You’re either a combatant or you’re not’. However, he laments that there are blurred lines in practice, especially where military forces engage in humanitarian activities or humanitarian actors use military assets and start to resemble a military force. He describes a photograph he once took of a military officer wearing civilian clothes, recalling: ‘It was a conflict area and he wanted to melt into the population. I know that is illegal, but you also have humanitarians dressing up in field gear…and you start asking, who is who?’ He identifies a ‘grey zone’ of relationships between internationalhumanitarian actors and other civilian actors. He proposes that this is not a legal issue to be resolved by IHL, but a matter of ‘what our respective organization means’. 487