Should We Expand the Duties of Defenders in the Law of Armed Conflict?

by Julian Ku

During a conference earlier this week at Northwestern on Israel and International law, NYU law professor Samuel Estreicher presented an interesting proposal to shift the focus of the law of armed conflict toward the duties of defenders.  Arguing that most of the law (or at least law interpretation) seems focused on attackers, the duties of defenders are largely free of regulation. Hence, Israel Defense Forces are swamped with duties with little or no attention to the duties held by Hamas defenders in Gaza.  As Estreicher argues, ignoring defender duties may undermine one of the goals of the the law of armed conflict: the reduction or minimization of civilian casualties.  Here is the essence of his argument:  The following is the essence of his proposal to draw out such defender duties from existing law of armed conflict sources.

1. The Prohibition of Civilian Shields

Geneva IV Art. 28: “The presence of a protected person may not be used to render certain points or areas immune from military operations.”9

AP Article 51(7): “The presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.”

2. The Prohibition of Perfidy

AP Article 37(1): “It is prohibited to kill, injure or capture an adversary by resort to perfidy. 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 the intent to betray that confidence, shall constitute perfidy. The following acts are examples of perfidy: …(c) the feigning of civilian, non-combatant status ….”

3. The Duty to Protect the Civilian Population Against Dangers from Military Operations

AP Article 51(1): “The civilian population and individual civilians shall enjoy general protection against dangers arising from military operations.”

AP Article 57(1): “In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects.”

AP Article 57(4): “In the conduct of military operations at sea or in the air, each Party to the conflict shall in conformity with its rights and duties under the rules of international law applicable to armed conflict, take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects.”

4. The Duty to Remove Civilians from and Not Locate Military Objectives in the Vicinity of Military Objectives

AP Article 58: “The parties to the conflict shall, to the maximum extent feasible: (a) without prejudice to Article 49 of the Fourth Convention, endeavour to remove the civilian population, individual civilians and civilian objects under their control from the vicinity of military objectives; (b) avoid locating military objectives within or near densely populated areas; (c) take the other necessary precautions to protect the civilian population, individual citizens and civilian objects under their control against the dangers resulting from military operations.”

5. The Duty to Avoid Methods or Means of Warfare that Cause Unnecessary Injury or Suffering

AP Article 35:

1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited. 2. It is prohibited to employ … methods of warfare of a nature to cause superfluous injury or unnecessary suffering.

2 Responses

  1. I don’t have many thoughts yet (I have not had enough caffeine this morning to do any thinking), but I seem to remember reading about this debate in other writings which might provide some additional context.

    On the one hand, W. Hays Parks has written about this. If I recall correctly, he argues that customary law puts the burden more on the defender. His conclusion was based on the Hague Regulations’ rules for bombardment and state practice.

    As a counter-argument, I seem to recall that during the negotiations of the Additional Protocols, some countries (Romania?) took the position that since the UN Charter supposedly outlawed aggressive warfare then the attacker should bear the burden of avoiding civilian casualties.

  2. There are probably different views on who was/is the aggressor and the defender in the Hamas-Israel conflict.

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