[T]he occupying power must be in a position to substitute its own authority for that of the occupied authorities, which must have been rendered inca- pable of functioning publicly; the enemy’s forces have surrendered, been defeated or withdrawn. In this respect, battle areas may not be considered as occupied territory. However, sporadic local resistance, even successful, does not affect the reality of occupation; the occupying power has a suffi- cient force present, or the capacity to send troops within a reasonable time to make the authority of the occupying power felt; a temporary administra- tion has been established over the territory; the occupying power has issued and enforced directions to the civilian population. 125
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.
The act of surrender possesses a political, military and legal dimension. It has a political dimension in the sense that an act of surrender indicates that a surrendering party has been defeated and the opposing force has been victorious. In its military context the act of surrender denotes that the person surrendering is no longer engaged in hostilities; that he or she is hors de combat. 5 In its legal dimension, where a valid offer of surrender is communicated to and received by opposing forces they are legally obligated to accept that offer and refrain from making surrendered persons the object of attack. 6 This article is concerned with exploring the legal status and content of the rule of surrender and this section traces the emergence of this rule within conventional and customary internationalhumanitarianlaw during international and non-international armed conflict as well as identifying its theoretical basis.
suspected enemies immediately raises concerns ranging from human rights issues to the abuse of state power.  On the other hand, states cannot be expected to allow their civilian populations and armed forces to be attacked with impunity by well-armed transnational terrorist organizations that have essentially entered into an armed conflict with the victim state. Where one stands on this controversial issue frequently informs the terminology employed. Those opposed to targeted killing commonly use such terms as 'extra-judicial execution' or 'assassination'. Those in favour of the tactic use such terms as 'preventive strike'. In striving for neutrality, this discussion will exclusively employ the term 'targeted killing'.
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.
personnel as targeting operations can be conducted at a distance from the target. This “risk-less warfare” is a fundamentally novel form of conflict, which has disrupted the mutuality of warfare, from which the law of armed conflict proceeded. Drones are significantly less expensive than conventional military hardware such as ground forces and manned aircraft. Further, the ability to track the movement of targets over a period of time, together with precision targeting capabilities, minimises the risk to civilians and civilian objects. Lastly, the use of drones avoids the difficulties and controversies associated with the deployment of military personnel, such as the detention of belligerents and the threat of insurgency. As much as the driving force behind the deployment of UAVs was to minimise the risk to human life in gathering intelligence and targeting operations, the proliferation of UAVs has as much to do with the relatively low cost of UAV aircraft compared to that of manned aircraft at a time when national defence budgets are under considerable pressure. For example, a single F-22 ‘Raptor’ aircraft costs approximately $170 million, whereas a ‘Predator’ drone costs approximately $6 million. Compared to manned aircraft, UAVs are an ideal surveillance and striking weapon, particularly in counter-terrorism and counter- insurgency operations, where targets are usually individuals. Although criticism of drone targeting practices has been directed at the perceived indiscriminate nature of those practices, which has resulted in disproportionate civilian casualties, according to Lewis, the reality of UAV strikes is that they provide greater opportunity for
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
Additionally, the reluctance of States to express opinio juris on particular topics of internationallaw is in some senses understandable. A number of considerations recommend the increasingly prevalent wait-and-see approach. A State may conclude that too little is known about the implications of an emerging area of warfare to commit to any particular international regulatory doctrine or regime or to admit publicly to the existence of international norms bearing on the matter at all. It is also possible that State reticence is less the product of calculated caution rather than political impasse deriving from domestic political considerations. In many municipal legal systems, constitutional and statutory arrangements spread authority over internationallaw matters among several agencies and even branches of government, frustrating coordination and consensus. 163
No language from these holdings indicates that the prior misconduct in question must include violations of the law of war in order to qualify as sufficient notice. In fact, these decisions indicate that low-level misconduct such as drinking and general disobedience can be meaningful considerations. However, in all of these tribunal cases, the prior bad acts did include law of war violations. This fact may be partly based on the premise that the international courts have been primarily concerned with defendants who were involved in multiple egregious wartime atrocities. The ad hoc tribunals have yet to decide a case that explores the limits of prior misconduct, which are solely constituted by bad acts that do not violate the laws and customs of war. These bad acts may include drinking, violations of military orders, using racially disparaging language, or other generally offensive conduct. It is unclear to what extent, and in what situations, these types of misconduct would be sufficient, in themselves, to put a commander on notice of future crimes, thereby triggering a duty to prevent.
icy” posed and poses a moral dilemma. It implies that the lives of your own pilots are worth more than the lives of the innocent civilians on the ground, since the acceptance of some collateral damage relates to the “others”, while the aim of “zero-casualty warfare” only relates to “yourself.” The discrepancy is troublesome and indicates that future humanitarian interventions or peace-enforcement actions should rely also on low flying aircraft to make pos- sible genuine target identification—and arguably also ground troops—if that is necessary in order to protect the civilian population. One expert on the law of the battlefield has written that in taking care to protect civilians, “soldiers must accept some element of risk to themselves.” 16 He notes that the law is
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 UNforces, 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.
[T]he majority position is under inclusive in the sense that failure to include cyber operations targeting data per se in the scope of the term “attack” would mean that even the deletion of essential civilian datasets such as so- cial security data, tax records, and bank accounts would potentially escape the regulatory reach of the law of armed conflict, thereby running counter to the principle . . . that the civilian population enjoys general protection from the effects of hostilities. For these Experts, the key factor, based on the underlying object and purpose of Article 52 of Additional Protocol I, is one of severity and the operation’s consequences, not the nature of harm. Thus, they were of the view that, at a minimum, civilian data that is “essen- tial” to the well-being of the civilian population is encompassed in the no- tion of civilian objects and protected as such. 20
As emphasized by its Preamble, the Convention on Cluster Munitions is mainly concerned with the protection of civilians and the negative consequences of cluster munitions on economic and social development, post-conflict rehabilitation and reconstruction the return of refugees and internally displaced persons, as well as on international peace-building and humanitarian assistance efforts. Under its provisions each party “undertakes never under ally circumstances” to use, develop, produce, acquire, stock-pile, retain or transfer cluster munitions, as well as to “(a)ssist, encourage or induce anyone to engage In any activity prohibited to a State Party under the Convention” (Art. 1(1)). The Convention was adopted on May 30, 2008 by 111 States, and is open for signing since December 2008 (Art. 15). As of 23 January 2009, it was signed by 95 States and ratified by four. 27