# Yoram Dinstein Arne Willy Dahl

# Oslo Manual on Select Topics of the Law of Armed Con ict

Rules and Commentary

Oslo Manual on Select Topics of the Law of Armed Conflict

Yoram Dinstein • Arne Willy Dahl

# Oslo Manual on Select Topics of the Law of Armed Conflict

Rules and Commentary

Yoram Dinstein Tel Aviv University Tel Aviv, Israel

Arne Willy Dahl Nittedal, Norway

ISBN 978-3-030-39168-3 ISBN 978-3-030-39169-0 (eBook) https://doi.org/10.1007/978-3-030-39169-0

This book is an open access publication.

© The Editor(s) (if applicable) and The Author(s) 2020

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# Introduction

# The Background of the Project

The HPCR Manual on International Law Applicable to Air and Missile Warfare (hereinafter the HPCR Manual) was adopted in 2009 by a Group of Experts and launched the following year with a Commentary.<sup>1</sup> The manual served as the basis for a series of courses—the AMPLE program—which for three years was funded by the Swiss Government and for one additional year by the Norwegian Government.<sup>2</sup> Instructors were largely drawn from the drafting committee of the HPCR Manual.

After sixteen courses, the AMPLE team of instructors summarized their experiences and concluded that the HPCR Manual was in need of updating for three main reasons. The first was that certain topics had been left out altogether, such as space warfare and autonomous weapons. The second was that, in some sections (for instance, protection of the natural environment), the consensus compromise reached by the Group of Experts was deemed unsatisfactory. The third was that events after the adoption of the manual showed that certain issues (e.g., protection of civilian airliners in conflict areas) deserved closer attention.

The AMPLE team of instructors approached the Norwegian Ministry of Defence (MoD) with a proposal for a research grant leading to a new manual on a list of selected topics. The Norwegian MoD was prepared to support the project on a limited basis. This meant that it would not be possible to gather all the experts involved in the HPCR Manual process. Instead of working on an update of that manual, it was decided to prepare a separate and independent document. It was also decided to go beyond air and missile warfare (including outer space), notably by including some sections on underwater operations. In still other sections, the focus was shifted from air and missile warfare to a more general approach.

<sup>1</sup> HPCR stands for the Program on Humanitarian Policy and Conflict Research at Harvard University.

<sup>2</sup> AMPLE stands for Air and Missile warfare Program of Legal Education.

The work on the new project took place exclusively in Oslo, and it was decided to name the final product the Oslo Manual on Select Problems of the Law of Armed Conflict (hereinafter the Oslo Manual). The Oslo Manual uses both the HPCR Manual and the 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea as models. Like them, the Oslo Manual must not be confused with a draft treaty intended to be used by a future diplomatic conference. The goal is rather to present a methodical restatement of existing international law on the selected topics, based on the general practice of States and treaties in force. No attempt has been made to be innovative or to come up with a lex ferenda (however desirable this may appear to be): the sole aim has been to systematically capture in the text the lex lata as we see it.

The views expressed in the Oslo Manual are the sole responsibility of the Group of Experts involved in the project and, notwithstanding the funding from the Norwegian Ministry of Defence, do not necessarily reflect the views of the Government of Norway.

# The Process

The Norwegian MoD appointed Professor (Emeritus) Yoram Dinstein as academic director and Judge Advocate General (ret.) Arne Willy Dahl as project manager. The Norwegian Defence University College agreed to provide administrative services and has also given invaluable support in the drafting process.

A group of 15 experts were convened, based on professional ability, all of them participating in the project in their purely personal capacity (the names of all the experts appear in Appendix I). The Norwegian MoD followed the project via an observer, and there were also a few other observers present, in particular from the Norwegian Defence University College. The views expressed in the Oslo Manual do not necessarily reflect those of the governments or institutions for which some of the experts participating in the project are working.

The first meeting of the Group of Experts took place at the Norwegian Defence University College in December 2015. At this meeting a list of 12 topics was adopted and assigned to individual experts, with a view to the preparation of research papers (roughly matching sections of the emerging Oslo Manual). Later, some of the topics were split into two or more parts and a few additional topics added, bringing the total number of sections to 18.

Subsequent meetings of the Group of Experts took place in June and November 2016, with a final meeting in June 2017. After the November 2016 meeting, a drafting committee (the names of the members of which appear in Appendix II) was convened. It met several times during the winter, offering textual additions and emendations, as well as examining draft commentaries originally provided by the respective experts. The entire Group of Experts was given an opportunity to offer feedback throughout the work in progress of the drafting committee.

At the final meeting of the Group of Experts in June 2017, the Black-letter Rules were adopted by consensus and the draft Commentary discussed. The Commentary was updated by the drafting committee thereafter.

In the preparation of the HPCR Manual and the 1994 San Remo Manual, governments were represented. This was not the case with regard to the Group of Experts preparing the Oslo Manual. For this reason, it was found necessary to consult certain governments. This was done at meetings in Washington D.C. in October and in The Hague in December 2017. The ICRC was also approached with a view to hear their views. As a result of the oral consultations, some changes were made immediately and the amended text circulated to the Group of Experts.

The governments that had been consulted were offered to submit written comments, which were considered by the drafting committee together with comments by some members of the Group of Experts at meetings in April and June 2018. The comments necessitated some revision of the text, but with regard to the substance, changes in the Oslo Manual were generally limited to adjust to the fact that there are different views among States on certain questions and that it is for such reasons more difficult to draw conclusions about customary law in these matters. A chapeau was added to several strongly affected sections in order to explain the situation.

# The Purpose of the Oslo Manual and its Commentary

It is hoped that the Oslo Manual, although it does not have a binding force, will serve as a valuable new restatement of the law of armed conflict. As such, it may prove useful in the development of future rules of engagement, the formulation of domestic military manuals, the preparation of training courses, and – above all – the actual conduct of armed forces in combat operations. The objective of the Oslo Manual is to be of help to those who plan, approve, or execute military operations before rather than after the event.

# The Black-Letter Rules of the Oslo Manual

The Black-Letter Rules of the Oslo Manual are a collaborative effort of the Group of Experts involved in the project. There are 18 sections of varying lengths, depending on the "density" of State practice and the consequent number of norms that have been consolidated in each sphere. Consideration of the needs of users has also led to the elaboration in greater detail of some sections. The first six sections are high-tech (and in part even futuristic) in their orientation. They are interconnected in the sense that cybernetics is an important ingredient in outer space operations or in the use of remotely controlled weapons, and it is an integral part of autonomous weapons. In undersea systems, autonomy is more developed than in airborne and surface systems, due to the difficulties in passing signals for remote control through water.

The subsequent sections are less reliant on high-tech, but the emphasis throughout is on relatively recent developments in military operations. Occasionally, there are high-tech dimensions even here (by way of illustration, the increasing tendency to use civilian employees of the government, or civilian contractors, to fulfill remotecontrol combat functions).

The Oslo Manual includes a section on international criminal law. The principal reason is the need expressed by operators and legal advisers at the AMPLE courses for guidance with regard to their particular roles and responsibilities in a complex military environment. Familiarity with what the law of armed conflict requires no longer seems to suffice: military personnel wish to know the extent of individual accountability in planning and executing operations, gathering intelligence, evaluating expected collateral damage compared to anticipated military advantage, and so forth.

# The Accompanying Commentary

Each Black-Letter Rule of the Oslo Manual is accompanied by a Commentary. This is aimed at providing user-friendly brief explanations for both legal advisers and military officers who plan, approve, or execute operations. Legal cites are kept to a minimum and the Commentary avoids academic discourses.

Although the Commentary was formulated by a small drafting committee (see above), this work was carried out in close cooperation with all the members of the Group of Experts. All participants had an opportunity to see the Commentary as it evolved and to critique it. Still, for obvious practical purposes, it was impossible to seek a line-by-line approval of a rather lengthy text by the entire Group of Experts. Hence, whereas the Black-letter Rules of the Oslo Manual reflect the views of the Group of Experts as a whole, the Commentary must be seen as the sole responsibility of the drafting committee.

# Contents



# Section I: Outer Space

# Rule 1 For the purposes of this Manual:

	- i. begins at the lowest possible point of the orbital perigee of artificial satellites;
	- ii. lies beyond the jurisdiction of all States.

# Commentary

	- (b) The Moon and other Celestial Bodies
		- i. do not include Earth.
		- ii. are separated by Outer Space but are not stricto sensu part of it.

#### Commentary

1. The Moon and other Celestial Bodies are generally considered res communis omnium. This implies that they are open for exploration, exploitation and use by

<sup>1</sup> As to the 100 kilometre approximation, see Program on Humanitarian Policy and Conflict Research at Harvard University, HPCR Manual on International Law Applicable to Air and Missile Warfare (AMW Manual) (2009), commentary Rule 1 (a) paragraph 5.

Y. Dinstein, A. W. Dahl, Oslo Manual on Select Topics of the Law of Armed Conflict, https://doi.org/10.1007/978-3-030-39169-0\_1

States, whether individually or collectively. They are not subject to national appropriation, which means that sovereignty can not be excercised over them by way of occupation (the non-appropriation principle).<sup>2</sup>

	- (c) "Outer Space operations" are operations that employ capabilities aimed at achieving objectives in or through Outer Space.

	- (d) "Outer Space systems and assests" are those human-made systems and assets located in Outer Space as well as on the Moon and other Celestial Bodies, with or without human occupants. The phrase includes spacecraft, satellites and all related infrastructure (including up-links and down-links).

<sup>2</sup> Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (OST) (1967), United Nations Treaty Series (UNTS), vol. 610, page 205. See Articles I and II.

<sup>3</sup> OST, ibid, Article III.

<sup>4</sup> OST, ibid, Articles VI and VII.

	- a. Ground stations;
	- b. Ground station mission or user terminals, which may include initial reception, processing and exploitation terminals;
	- c. Launch systems and directly related support infrastructure, including space surveillance, battle management, command, control, and communications infrastructure and computers;
	- d. Launch sites;
	- e. Booster storage facilities;
	- f. Satellite storage and assembly facilities;
	- g. Telemetry, Tracking, and Commanding (TT&C) nodes, including both hot and cold back up facilities;
	- h. Research and development facilities; and
	- i. Launch facilities and vehicles.

#### Rule 2

# Outer Space operations are governed by international law, including the Charter of the United Nations and the applicable principles and rules of the Law of Armed Conflict (LOAC).


<sup>5</sup> Charter of the United Nations (1945), UNTS, vol. 1.

juris, the application or interpretation of LOAC in Outer Space may be subject to controversy.


# Rule 3

# State Parties to the Outer Space Treaty must not place in orbit around the Earth any objects carrying nuclear weapons or any other weapons of mass destruction, install such weapons on the Moon or other Celestial Bodies, or station such weapons in Outer Space in any other manner.


<sup>6</sup> OST, see fn. 2, Preamble.

<sup>7</sup> OST, see fn. 2, Article IV(2).

International Court of Justice they are "explosive devices whose energy results from the fusion or fission of the atom". <sup>8</sup> The Group of Experts took the view that, for the purposes of Article IV (1) of the OST, WMD comprise—in addition to nuclear weapons—those weapons that are prohibited by the 1972 Biological Weapons Convention9 and the 1993 Chemical Weapons Convention.10

4. An Outer Space object with a nuclear power source is not necessarily a nuclear weapon for the purposes of this Manual.

#### Rule 4

#### Without prejudice to the Charter of the United Nations, the principles and rules of LOAC are the lex specialis during armed conflict and prevail over the general law of Outer Space.

# Commentary


#### Rule 5

With respect to an armed conflict, States bear responsibility for their respective internationally wrongful Outer Space operations as well as other wrongful activities conducted in Outer Space that are attributable to them. Responsibility extends to such actions by all persons forming part of the armed forces.

#### Commentary

1. This Rule exclusively applies to State responsibility under LOAC. However, the first sentence of the Rule is also consistent with Article VI of the OST.

<sup>8</sup> Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, at para 35, page 243.

<sup>9</sup> Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (BWC) (1972), UNTS, vol. 1015, page 164, Article I.

<sup>10</sup>Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC) (1993), International Legal Materials (ILM), vol. 32, page 800, Article II.

<sup>11</sup>See fn. 2.


#### A person who wrests control of Outer Space systems and assets assumes responsibility for subsequent use of the system in accordance with the degree and the duration of the control exercised.

#### Commentary


#### Rule 7

(a) In the study, development, acquisition or adoption of a new weapon, means or method of Outer Space warfare, a State that is party to Additional Protocol I must determine whether its employment would,

<sup>12</sup>International Law Commission's Draft Articles on Responsibility of States for Internationally Wrongful Acts, Report of the International Law Commission on the work of its fifty-third session, Yearbook of the International Law Commission, 2001, Vol. II, Part Two, page 26, Articles 4 and 5.

<sup>13</sup>Convention IV Respecting the Laws and Customs of War on Land and its Annex: Regulations Respecting the Laws and Customs of War on Land (1907 Hague Regulations) (1907), Schindler and Toman, The Laws of Armed Conflicts, Martinus Nijhoff Publishers (Leiden/Boston) (2004), page 66. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), (AP/I) (1977), The Laws of Armed Conflicts, page 711.

<sup>14</sup>Convention on International Liability for Damage Caused by Space Objects, (Liability Convention) (1972), UNTS, vol. 961, page 187.

in some or all circumstances, be prohibited by any rule of international law applicable to that State.

(b) In the acquisition of a new weapon or means of Outer Space warfare, a State that is not party to Additional Protocol I should determine whether its employment would, in some or all circumstances, be prohibited by applicable principles and rules of LOAC.

#### Commentary


#### Rule 8

In Outer Space operations occurring during armed conflict, the concept of attack applies to all acts of violence against the adversary, whether in offence or defence. The acts must be intended to cause—or must be reasonably expected to result in—death, injury, destruction or damage. These acts

<sup>15</sup>Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water (LTBT) (1963), UNTS, vol. 480, page 44. Articles 1(a) and (b).

generally do not include those intended to cause only temporary loss of functionality, e.g., jamming.


<sup>16</sup>AP/I, see fn. 13, Article 49.


#### In principle, Outer Space systems and assets belonging to the armed forces constitute military objectives because, by nature, they make an effective contribution to the enemy's military action.

#### Commentary


#### Rule 10

#### Civilian Outer Space systems and assets must not be the object of attack unless they qualify as military objectives—if not by nature—by location, purpose or use.

	- a. Commercial space systems used to augment military space capabilities and to increase the resiliency of space architectures, e.g., space launch facilities.
	- b. Communication satellites or commercial earth-imaging systems normally used for civilian purposes but effectively contributing to military action, e.g., GPS satellite systems and EO satellites used for military Command and Control functions or intelligence collection.
	- c. Satellites hosting a military payload (dual use).

# In Outer Space operations constituting attacks, assessments of collateral damage should take into consideration the effects of space debris expected to result from the attack.


<sup>17</sup>AP/I, see fn. 13, Article 51(5)(b).

<sup>18</sup>Space debris may be defined as all man-made objects, including fragments and elements thereof, in Earth orbit or re-entering the atmosphere, that are non-functional. See Space Debris Mitigation Guidelines of the Committee on the Peaceful Uses of Outer Space, endorsed by the UN Committee on the Peaceful Uses of Outer Space at its fiftieth session and contained in A/62/20, annex.

Moreover, an attack may result in the denial of the exercise of the right to use Outer Space by civilian satellites or seriously damage crucial civilian infrastructures that depend upon Outer Space systems in order to function properly. Such expected consequences must be considered in relation to the concrete and direct military advantage anticipated when applying the proportionality rule.

6. Collateral damage does not include mere inconvenience. However, if as a result of the presence of debris in Outer Space a civilian satellite is forced to detour, thereby expending fuel so as to be unable to perform its normal functions, the situation may no longer amount to mere inconvenience.

#### Rule 12

# The concept of direct participation in hostilities applies to civilians, including civilian employees of State agencies, who conduct Outer Space operations in the context of an armed conflict.

# Commentary


## Rule 13

## In Outer Space operations, activities qualifying as direct participation in hostilities may include:

(a) Any activity designed or intended to directly cause death of, injury to, damage to or destruction of to an adverse party;

<sup>19</sup>Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (AP/II) (1977), Laws of Armed Conflicts, page 775, at page 781. Common Article 3 appears in the following: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GC I) (1949), Laws of Armed Conflict, page 459, at page 461; Convention (II) for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GC II) (1949), Laws of Armed Conflict, page 485, at page 487; Convention (III) relative to the Treatment of Prisoners of War (GC III) (1949), Laws of Armed Conflict, page 507, at page 512; Convention (IV) Relative to the Protection of Civilian Persons in Time of War (GC IV), Laws of Armed Conflict, page 575, at page 580.



#### Rule 14

In Outer Space operations constituting attacks, feasible precautions should be taken with a view to the specific characteristics of Outer Space, including the presence or functions of civilian satellites and the effects on the use of the electromagnetic spectrum.


#### The AP/1 obligations with regard to the natural environment should apply to Outer Space operations and to their effects on all parts of Outer Space, the Moon and other Celestial Bodies.

#### Commentary


#### Rule 16

States Parties to the ENMOD Convention are prohibited from making any military or other hostile use of Outer Space environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party.

#### Commentary

1. Because the ENMOD Convention<sup>20</sup> does not express customary LOAC, its obligations only bind States Parties to the Convention. The ENMOD Convention specifically prohibits the use of environmental modification techniques on the "lithosphere, hydrosphere and atmosphere, or of Outer Space."

#### Rule 17



<sup>20</sup>Convention on the Prohibition of Military or any Hostile use of Environmental Modification Techniques (ENMOD) (1976), UNTS, vol. 1108, page 151.

<sup>21</sup>Agreement on the Rescue of Astronauts, the Return of Astronauts and Return of Objects Launched into Outer Space (1968), UNTS, vol. 672, page 119.

<sup>22</sup>Convention on Registration of Objects Launched into Outer Space (1974), UNTS, vol. 1023, page 15, Article 1(c).

As a general principle, neutral States must not knowingly allow space systems and assets for which they are responsible to be used by Belligerent States in Outer Space operations related to armed conflict.


<sup>23</sup>Convention (V) Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (1907), Laws of Armed Conflicts, page 1399. Convention (XIII) Concerning the Rights and Duties of Neutral Powers in Naval War (1907), Laws of Armed Conflicts, page 1407.

<sup>24</sup>For comparative purposes, see Article 3 of the 1907 Hague Convention (V) on Neutral Powers and Persons in War on Land, see fn. 23.


# As a general principle, Belligerent States must conduct their Outer Space operations with due regard for the rights of Neutral States.


<sup>251907</sup> Hague Convention (V) on Neutral Powers and Persons in War on Land, ibid, Article 8.

<sup>261907</sup> Hague Convention (V) on Neutral Powers and Persons in War on Land, ibid, Article 9.

<sup>271907</sup> Hague Convention (V) on Neutral Powers and Persons in War on Land, ibid, Article 10. 28OST, see fn. 2, Article IX.

<sup>29</sup>Similar duties are established in naval warfare. See San Remo Manual on International Law Applicable to Armed Conflicts at Sea (San Remo Manual) (1994), The Laws of Armed Conflicts, page 1153, paras 12 and 88.

Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

# Section II: Cyber Operations

At the time of composing the Oslo Manual, there were some fundamental differences of opinion among States as to the interpretation or acceptability of terms such as "cyber means of warfare", "cyber methods of warfare", and "cyber attacks". The Group of Experts took cognizance of those differences of opinion but concluded, coherent with the view of the International Court of Justice, as expressed in the Nuclear Weapons Advisory Opinion<sup>1</sup> that the cardinal principles of LOAC would apply to all forms of warfare. This includes cyber warfare.

## Rule 20

(a) For the purposes of this Manual, "cyber operations" are operations that employ capabilities aimed at achieving objectives in or through cyberspace.


<sup>1</sup> See chapter "Section I: Outer Space", fn. 8.

<sup>2</sup> US Chairman of the Joint Chiefs of Staff, Joint Publication 3-0, Joint Operations, 17 January 2017, page GL-8. See also U.S Chairman of the Joint Chiefs of Staff, Joint Publication 3-12 (R), Cyberspace Operations, 5 February 2013.

Y. Dinstein, A. W. Dahl, Oslo Manual on Select Topics of the Law of Armed Conflict, https://doi.org/10.1007/978-3-030-39169-0\_2

	- a. Unauthorized access to computers, computer systems or networks to obtain information, but without necessarily affecting the functionality of the accessed system or amending, corrupting, or deleting the data resident therein; and
	- b. Operations, whether in offence or in defence, intended to alter, delete, corrupt or deny access to computer data or software for the purposes of propaganda or deception; partly or totally disrupting the functioning of the targeted computer, computer system or network and related computer-operated physical infrastructure (if any); or producing physical damage extrinsic to the computer, computer system, or network.
	- (b) Cyber operations, when carried out as part of an armed conflict, are governed by applicable principles and rules of LOAC.


#### Rule 21

With respect to an armed conflict, States bear responsibility for their cyber operations as well as other activities conducted in cyberspace that are attributable to them. Such responsibility includes actions by all persons belonging to the armed forces of the State.

<sup>3</sup> US Department of Defence, Dictionary of Military and Associated Terms, Joint Publication 1-02, 8 November 2010 (as amended through 15 February 2016), page 58.

<sup>4</sup> The applicability of LOAC to cyber operations has been affirmed, inter alia, in the Report of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security, 22 July 2015, UN Doc. A/70/174, page 13 and the Department of Defence Law of War Manual (US DoD Manual) (2015, amended 2016), at page 1013 ff.


# Rule 22

All those involved in the conduct of cyber operations, including attacks, are responsible for their respective roles and, commensurate with their involvement, have obligations to ensure that such operations are conducted in accordance with the applicable principles and rules of LOAC.

# Commentary


# Rule 23



<sup>5</sup> See chapter "Section I: Outer Space", fn. 13.

cases, legality will depend on how the capability is used rather than the capability itself.

# Rule 24

In cyber operations occurring during an armed conflict, the concept of attack applies to all acts of violence against the adversary, whether in offence or defence. The acts must be intended to cause—or must be reasonably expected to result in—death, injury, destruction or damage. These acts generally do not include those intended to cause only temporary loss of functionality.


<sup>6</sup> AMW Manual, see chapter "Section I: Outer Space", fn. 1, see Commentary to Rule 1(e). Schmitt (ed.), Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations (2nd ed.) (Tallinn Manual), (Cambridge: Cambridge University Press) (2017), see Rule 30.

In principle, cyber infrastructure belonging to the armed forces constitutes a military objective by nature.

# Commentary


# Rule 26

Cyber infrastructure which does not belong to the armed forces—even if not constituting a military objective by nature—may still be attacked if it qualifies as a military objective by location, purpose or use. Cyber infrastructure not making an effective contribution to the enemy's military action is a civilian object and may therefore not be made the object of attack.

# Commentary


# Rule 27

The concept of direct participation in hostilities applies to civilians, including civilian employees of State agencies, who conduct cyber operations in the context of an armed conflict.


Cyber operations qualifying as direct participation in hostilities may include:


# Commentary


# Rule 29

# In cyber operations constituting attacks, feasible precautions should be taken where necessary in order to avoid, or in any event minimize, destruction or damage to civilian objects, or death or injury to civilians.


attacked. The assessment of potential or likely collateral damage will largely depend on the characteristics of the targeted system.


#### Rule 30

A Belligerent State should not conduct cyber operations that constitute attacks causing physical damage to or destruction of objects located in neutral territory, including neutral cyber infrastructure, unless the Neutral State is unable or unwilling to terminate an abuse of such objects or infrastructure by an adversary of the Belligerent State.


<sup>7</sup> Tallinn Manual, see fn. 6, Rule 53.

<sup>8</sup> See chapter "Section I: Outer Space", fn. 23, Articles 1 and 2.


## Belligerent States must not launch attacks from cyber infrastructure located in neutral territory or under the exclusive control of Neutral States.


<sup>9</sup> See chapter "Section I: Outer Space", fn. 5.


If in the context of an armed conflict a Belligerent Party undertakes cyber operations constituting an attack from cyber infrastructure located on Neutral territory, the neutral State must use reasonable means at its disposal to terminate the attack once it becomes aware of it.


<sup>10</sup>Tallinn Manual, see fn. 6, page 248, and 1907 Hague Convention (XIII) on Neutrality in Naval War, see chapter "Section I: Outer Space", fn. 23, Articles 8 and 25.

<sup>11</sup>Tallinn Manual, see fn. 6, page 251.

<sup>121907</sup> Hague Convention (V) on Neutral Powers and Persons in Case of War on Land, see chapter "Section I: Outer Space", fn. 23, Article 5. 1907 Hague Convention (XIII) on Neutrality in Naval War, see fn. 25, Article 8.

The mere fact that cyber operations are routed through neutral cyber infrastructure does not constitute a violation of neutrality.

# Commentary


# Rule 34

(a) Without prejudice to Rule 32, the mere use of neutral cyber infrastructure by a Belligerent State is not generally prohibited.

#### Commentary


# (b) Belligerent States are thus permitted to:



<sup>13</sup>See chapter "Section I: Outer Space", fn. 23.

<sup>14</sup>Ibid.

Any measure of restriction or prohibition taken by a Neutral State with regard to the activities referred to in Rule 34 should be impartially applied to all Belligerent States.

#### Commentary

1. This Rule is based on Article 9 of the Hague Convention V on Neutral Powers in War on Land.<sup>15</sup>

Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence and indicate if changes were made.

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<sup>15</sup>Ibid.

# Section III: Remote and Autonomous Weapons


capabilities and constraints). In the final analysis, legal responsibility will devolve on the State and on individuals involved in that activity (see Rules 43 and 44).

#### Rule 36

#### For the purposes of this Manual, a "remotely piloted aircraft" (RPA) is an aircraft that is controlled via a remote communication link by a human operator who is not located on board the aircraft.


<sup>1</sup> AMW Manual, see fn. 1, rules 1(dd) and 1(ee).

<sup>2</sup> UK Ministry of Defence, The Manual of the Law of Armed Conflict (UK Manual), Oxford: Oxford University Press (2004), paragraph 12.4.1 as amended.

6. During an international armed conflict, an RPA may only be used to exercise belligerent rights, such as attack or interception operations, if it fulfills the requirements of a military aircraft.<sup>3</sup> To qualify as a military aircraft, it must be operated by the armed forces of a State, bear the military markings of that State (provided the size of the aircraft allows for such marking), be commanded by a member of the armed forces and be controlled by personnel subject to regular armed forces discipline.<sup>4</sup>

#### Rule 37

For the purposes of this Manual, a "highly automated" weapon system is a system that, once activated, is capable of identifying and engaging a target without further human input, while being constrained by algorithms that determine its responses by imposing rules of engagement and setting mission parameters which limit its ability to act independently.


<sup>3</sup> Hague Rules Concerning the Control of Wireless Telegraphy in Time of War and Air Warfare (Hague Draft Rules of Aerial Warfare) (1923), Laws of Armed Conflicts, at page 315, Article 13; UK Manual, see fn. 2, para 12.34; German Federal Ministry of Defence, Law of Armed Conflict Manual (German Manual) (2013), Joint Service Regulation (ZDv) 15/2, para 1103; US DoD Manual, see chapter "Section II: Cyber Operations", fn. 4, para 14.3.3.

<sup>4</sup> Hague Draft Rules of Aerial Warfare 1923, Articles 3, 13 and 16, see fn. 3; and US DoD Manual, see chapter "Section II: Cyber Operations", fn. 4, paras 14.3.2 and 14.3.3; so, law enforcement, customs, or coastguard aircraft, including RPA, that do not qualify as military aircraft and that are not incorporated into the armed forces may not engage in hostilities. It remains to be seen whether, as small and unmanned military air platforms start to be more widely used, States continue to apply to them rules as to military and nationality marking.

<sup>5</sup> US DoD Manual, see chapter "Section II: Cyber Operations", fn. 4, para 6.5.9.1.

For the purposes of this Manual, an "autonomous" weapon system is a weapon system that is programmed to apply human-like reasoning to determine whether an object or person is a target, whether it should be attacked, and if so, how and when.


6. While it is possible to characterize an autonomous weapon system as making a decision in a factual sense, it is also critical to emphasize that LOAC imposes obligations on persons and does not impose direct obligations on the weapons themselves. LOAC does not, for example, express a requirement that an autonomous weapon system must determine whether its target is a military objective, if no human being is involved in the attack decision-making process. Nevertheless, LOAC still requires the attack to be conducted in accordance with targeting law (see Rule 41). For State responsibility and any responsibility by individuals involved in an attack, see Rules 43 and 44.

#### Rule 39

#### For the purposes of this Manual:

(a) A "man-in-the-loop system" positions the operator within the loop formed by the decision-making process of the system such that the human operator decides on the firing of a weapon.

#### Commentary

	- (b) A "man-on-the-loop system" is one that is capable of highly automated or autonomous operation but is supervised by a human operator who has the capability to intervene and override a decision, such as the decision to fire a weapon.

#### Commentary

1. A "man-on-the-loop system" is differently configured from a "man-in-the-loop system". The operator is not positioned, either physically or structurally, within the loop formed by the system's decision-making process to fire a weapon after receiving external inputs. The weapon system may be capable of making and implementing its own determinations as to attack, reconnaissance, information gathering or other tasks, but the "man-on-the-loop" element inserts the presence of a human operator who—while not involved in the firing of the weapon or other decisions—is nevertheless able to observe the determination being made and the action being taken by the weapon system and to intervene and countermand any determination or actions that seems likely to lead to unlawful or undesirable consequences. Such aircraft can be distinguished from other aircraft in which the human controller decides which target is to be engaged or which task is to be undertaken and who undertakes the attack by initiating the firing mechanism or transmitting the instructions for the performance of the chosen task using the remote-control facility built into the RPA system.


<sup>6</sup> AP/I, see chapter "Section I: Outer Space", fn. 13, Articles 51(2), 52(1) and 57(2)(b).

5. While the presence of the person "on-the-loop" may, in the context of a particular weapon system, be the aspect that enables the required precautions in attack to be undertaken, the circumstances in which the person is operating "on-the-loop" will determine whether the precautions are actually taken with sufficient care. Thus, for example, if a person is contemporaneously placed "on-the-loop" of numerous weapon systems, or of weapon systems undertaking numerous contemporaneous operations or attacks so that he/she is not practically able to monitor properly the precautions that targeting law requires (including those referred to in the present Commentary) this might have the consequence that the requirement to take feasible precautions would not be complied with to an acceptable degree. The word "might" is used here because there may be other elements of the weapon system or of its method of operation that do enable particular precautions to be taken. The point remains, however, that if legal compliance relies on a man "onthe-loop" and if that person is over-tasked in whatever way, compliance is put at risk.

## Rule 40

For the purposes of this Manual, a "swarm" is a group of aircraft or other vehicles of any size that is performing (or is intended to perform) military tasks in which the individual aircraft or other vehicles are autonomously coordinating or acting in formation.

#### Commentary


#### Rule 41

The employment of remotely piloted, highly automated or autonomous systems and swarms for the purposes of attack is subject to the applicable principles and rules of LOAC, in particular distinction, proportionality and the obligation to take feasible precautions.


achieving compliance with targeting law may require that there be sufficient controllers or operators adequately linked in with the activities of each aircraft.

9. The determination whether or not to act in formation may be taken autonomously.

#### Rule 42


#### Commentary


#### Rule 43

With respect to an armed conflict, States bear responsibility for internationally wrongful operations using RPAs, highly automated weapon systems or autonomous weapons that are attributable to them. Such responsibility encompasses actions by all persons belonging to the armed forces.

<sup>7</sup> Note, however, that Protocol (II) to the Conventional Weapons Convention on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Protocol II to CCW) (1980), The Laws of Armed Conflicts, page 185, address, inter alia, "other devices" which include manually emplaced munitions actuated by remote control.

1. For an interpretation of this Rule, see the commentaries on Rules 5 and 21.

#### Rule 44

All those involved in the conduct of operations, including attacks, using RPAs, highly automated weapon systems or autonomous weapons, are responsible for their respective roles and, commensurate with their involvement, have obligations to ensure that such operations are conducted in accordance with the applicable principles and rules of LOAC.


7. In view of the novelty and complexity of the technology, it is not clear exactly where responsibility under international criminal law will lie for specific acts performed by an autonomous or highly automated weapon system. See chapter "Section XVII: International Criminal Law" with regard to individual criminal liability in international law and command responsibility particularly.

#### Rule 45

A person who wrests control of a weapon system referred to in this Section assumes responsibility for its subsequent use in accordance with the degree and the duration of the control exercised.

	- a. If a cyber hacker exercises control of a weapon system referred to in this Section and knowingly or intentionally directs its weapon—or knowingly or intentionally causes the weapon system to direct weapons—at a target or category of targets of his/her choice, he/she becomes responsible for the consequences of such employment of the weapon.
	- b. This subparagraph applies if the cyber hacker does this with the intention of causing the weapon to attack civilians, civilian objects or persons or objects entitled to specific protection, or to undertake indiscriminate attacks. If this sub-paragraph applies, the cyber hacker is responsible for the consequences of the use of the weapon.
	- c. If in the circumstances described in sub-paragraph b the cyber operation foreseeably causes the adverse party's attack(s) to become indiscriminate,

<sup>8</sup> Discrimination is here used to refer to indiscriminate attacks.

the cyber operation is likely (depending on the circumstances) to conflict with obligations under Articles 57(1) and 58(c) of AP/I.<sup>9</sup>

3. If two adversaries are contesting control over a weapon system and the system ends up crashing and harming civilians, responsibility may be impossible to attribute to either of them.

Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

<sup>9</sup> See chapter "Section I: Outer Space", fn. 13.

# Section IV: Unmanned Maritime Systems

To a certain extent, this Section overlaps some provisions of chapter "Section III: Remote and Autonomous Weapons" inasmuch as both Sections deal with unmanned systems. However, whereas chapter "Section III: Remote and Autonomous Weapons" addresses both unmanned platforms and weapon systems, the present Section focuses on unmanned maritime platforms that may or may not be integral parts of a weapon system. The maritime platforms and systems dealt with here must therefore be distinguished from automated weapon systems, in particular those for the defence of surface platforms against missile threats. Accordingly, the terminology used in this Section does not necessarily replicate that used in chapter "Section III: Remote and Autonomous Weapons".

#### Rule 46

#### (a) "Unmanned Maritime Systems" (UMS) are:

	- a. are remotely operated,
	- b. are remotely controlled, or
	- c. perform their functions independently from a human controller or operator on board the craft.

#### Commentary

1. UMS comprise surface, semi-submersible and undersea vehicles of various sizes. They are either remotely operated/controlled or "autonomous". Many of the systems in use today are remotely operated or controlled but they "capitalize on automation in extreme circumstances, such as a lost link condition, to perform automatically a pre-programmed set of instructions." At present, there is no maritime system which may be considered as fully autonomous as defined in Rule 38.

	- a. Offshore oil and gas missions;
	- b. Undersea cable deployment and inspection;
	- c. Commercial salvage;
	- d. Aquaculture; and
	- e. Science missions, such as oceanography and marine archaeology.
	- a. Intelligence, surveillance, and reconnaissance (ISR);
	- b. Mine countermeasures (MCM);
	- c. Anti-submarine Warfare (ASW);
	- d. Inspection/identification;
	- e. Oceanography;
	- f. Communication/navigation network node (CN<sup>3</sup> );
	- g. Payload delivery;
	- h. Information operations (IO); and
	- i. Time-critical strike (TCS).

# (b) UMS include Unmanned Surface Vehicles (USVs) and Unmanned Underwater Vehicles (UUVs).

## Commentary

1. According to the US DoD, "UMS comprise unmanned maritime vehicles (UMVs), which include both unmanned surface vehicles (USVs) and unmanned undersea vehicles (UUVs), all necessary support components, and the fully integrated sensors and payloads necessary to accomplish the required missions". 1

<sup>1</sup> U.S. Department of Defense, Unmanned Systems Integrated Roadmap FY2013-2038 (DoD Roadmap), page 8.

Although those definitions seem to suggest that UMVs/USVs are but components of UMS, it would not be correct to hold that UMVs/USVs do not qualify as "systems" because they are composed of various subsystems.<sup>2</sup>

2. While some Governments presently prefer the use of the term "UMV", the Group of Experts took note of the fact that there is not yet a sufficiently agreed upon understanding of the various concepts. Although it is possible that all UMVs will be considered "vessels" or "ships", State practice has not yet crystallized. Since a distinction between "systems" and "vehicles" does not prove helpful, it seems appropriate, for the purposes of this Manual, to consider the terms "UMS" and "UMV" as synonymous.

#### Rule 47

If owned or operated by a State and used only on Government non-commercial service, all UMS enjoy sovereign immunity. This is without prejudice to their status under LOAC.


<sup>2</sup> For example, the major UUV's subsystems are: the pressure hull, the hydrodynamic hull, ballasting, power and energy, electrical-power distribution, propulsion, navigation and positioning, obstacle avoidance, masts, manoeuvre control, communications, locator and emergency equipment, payloads. See National Defense Research Institute, A Survey of Missions for Unmanned Undersea Vehicles (RAND) (2009), page 46 ff.

<sup>3</sup> United Nations Convention on the Law of the Sea of 10 December (UNCLOS) (1982), UNTS, vol. 1833, page 397.

<sup>4</sup> U.S. Navy/U.S. Marine Corps/U.S. Coast Guard, The Commander's Handbook on the Law of Naval Operations (NWP 1-14M), paras. 2.3.4–2.3.6 (Edition July 2007).

they do enjoy sovereign immunity. Hence, they may only be interfered with by other States in very exceptional circumstances (e.g., in an international armed conflict). Accordingly, "USVs and UUVs engaged exclusively in Government, non-commercial service are sovereign immune craft." 5


# Rule 48

In peacetime, UMS enjoy all navigational rights in accordance with the international law of the sea, i.e. innocent passage in territorial sea areas, transit passage in international straits, archipelagic sea lanes passage and freedom of navigation in the high seas and in the Exclusive Economic Zone (EEZ).

# Commentary

1. USVs and UUVs retain the same independent rights of navigation as manned surface vessels and submarines. States in general have not (as yet) made statements to that effect, although they make use of UMS for governmental, scientific and commercial purposes. Hence, it is safe to conclude that UMS enjoy the right of freedom of navigation in the high seas and in the EEZ as well as the rights of innocent passage, transit passage and archipelagic sea lanes passage.

# Rule 49

With respect to an armed conflict, States bear responsibility for internationally wrongful operations using UMS that are attributable to them. Such responsibility encompasses actions by all persons belonging to the armed forces.

## Commentary

1. For an interpretation of this Rule, see the commentaries on Rules 5, 21 and 43.

# Rule 50

All those involved in the conduct of operations, including attacks, using UMS, are responsible for their respective roles and, commensurate with

6 Ibid.

<sup>5</sup> NWP 1-14M, see fn. 4, para. 2.3.6.

their involvement, have obligations to ensure that such operations are conducted in accordance with the applicable principles and rules of LOAC.

#### Commentary

1. See Commentaries on Rules 5, 22 and 44.

#### Rule 51

A person who wrests control of a UMS or its weapons, assumes responsibility for its subsequent use in accordance with the degree and duration of the control exercised.

#### Commentary

1. See the Commentaries on Rules 6 and 45.

# Rule 52

During an armed conflict, UMS may be employed for attacks and for the exercise of other belligerent rights if they:

(a) are operated by the armed forces of a State;

#### Commentary

1. Although it is unsettled whether UMS qualify as, or are assimilated to, warships, State practice seems to suggest that they are, and will be, used not only for attack purposes but also for the exercise of other belligerent rights, such as inspection of vessels.

#### (b) bear the military markings of that State; and

#### Commentary

	- (c) are controlled or deployed by persons subject to regular armed forces discipline.

#### Commentary

1. Those controlling or deploying UMS should be under regular armed forces discipline in order to ensure compliance with LOAC. The fact that the software on the UMS has been programmed by civilians is irrelevant with respect to the legal status of the UMS.

2. Control and deployment of UMS can include either direct control or the setting of mission conditions, objectives or parameters.

# Rule 53

The employment of UMS for the purposes of attack is subject to the applicable principles and rules of LOAC, in particular, distinction, proportionality and the obligation to take all feasible precautions.

# Commentary

1. Whereas many UMS are used for ISR or oceanography, some are designed for combat purposes, such as those employed for ASW, MCM or mine-laying. If and to the extent UMS are employed for the purposes of attack, they qualify as means of warfare,<sup>7</sup> and their employment is subject to weapons law and targeting law.

# Rule 54

	- i. military objectives by nature; and
	- ii. subject to the concept of booty of war.

# Commentary


# Rule 55 Neutral UMS may not be attacked or captured, unless they qualify as lawful targets.

<sup>7</sup> As defined in AMW Manual, see chapter "Section I: Outer Space", fn. 1, Rule 1 (t).

<sup>8</sup> San Remo Manual, see chapter "Section I: Outer Space", fn. 29, para 40. See also Rule 77.

	- a. Engage in belligerent acts on behalf of the enemy;
	- b. Are incorporated into or assist the enemy's intelligence system;
	- c. Act as auxiliaries to the enemy's armed forces; or
	- d. Otherwise make an effective contribution to the enemy's military action.

#### Rule 56

#### Enemy UMS are not liable to capture, if they are used exclusively for non-military scientific purposes.

#### Commentary

1. Like enemy merchant vessels, UMS are liable to capture outside neutral waters.<sup>12</sup> According to Article 4 of the 1907 Hague Convention (XI)13 and customary

<sup>9</sup> San Remo Manual, ibid, para 67.

<sup>10</sup>Declaration concerning the Laws of Naval War (London Declaration) (1909), The Laws of Armed Conflict, page 845, Article 37; San Remo Manual, see chapter "Section I: Outer Space", fn. 29, para 146(a).

<sup>111909</sup> London Declaration, see fn. 10, Article 40.

<sup>12</sup>San Remo Manual, see chapter "Section I: Outer Space", fn. 29, paras 112 ff.

<sup>13</sup>Convention (XI) Relative to Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War, (1907), The Laws of Armed Conflicts, page 819.

international law,<sup>14</sup> "vessels charged with scientific missions are [...] exempt from capture".

	- a. Are innocently employed in their normal role;
	- b. Do not commit acts harmful to the enemy; and
	- c. Do not intentionally hamper the movement of enemy naval forces.

# Rule 57

In so far as the use of neutral waters and ports is concerned, belligerent UMS are subject to the same rules as manned belligerent warships. Accordingly:

# (a) Hostile actions by belligerent UMS are prohibited.

# Commentary

	- a. Attack of objects and persons located in, on or over neutral waters or territory; or
	- b. Laying of mines.
	- (b) Belligerent UMS may not use neutral waters as a base of operations or as a sanctuary.

	- (c) Subject to the 24-hour rule, belligerent UMS have the right of stay in neutral ports or of innocent passage in neutral waters, unless the neutral coastal State has, on a non-discriminatory basis, conditioned, restricted or prohibited such stay or passage.

<sup>14</sup>San Remo Manual, see chapter "Section I: Outer Space", fn. 29, para. 136 (e).

<sup>151907</sup> Hague Convention (XIII) on Neutrality in Naval War, see chapter "Section I: Outer Space", fn. 23.

<sup>16</sup>San Remo Manual, see chapter "Section I: Outer Space", fn. 29, para 15.

<sup>17</sup>San Remo Manual, ibid, para 14.

<sup>18</sup>San Remo Manual, ibid, paras 16 (b) and 17.


#### Rule 58

A Neutral State may not suspend or otherwise hamper the rights of belligerent UMS as regards transit passage in international straits and passage through archipelagic sea lanes.

#### Commentary


#### Rule 59

(a) In the Exclusive Economic Zone or on the continental shelf of Neutral States, UMS must be employed with due regard for the rights and duties of the coastal State.

#### Commentary

1. In an international armed conflict, Belligerent States are not barred from the exercise of belligerent rights in the EEZ or on the continental shelf of Neutral States. However, Neutral States continue to enjoy functionally limited sovereign rights. Accordingly, when conducting hostile actions within the EEZ or on the continental shelf of Neutral States, belligerents shall, in addition to observing the basic principles and rules of the law of naval warfare, have due regard for the rights and duties of the coastal State, inter alia, for the exploration and exploita-

<sup>19</sup>San Remo Manual, ibid, para 21.

<sup>20</sup>San Remo Manual, ibid, para 19.

<sup>21</sup>San Remo Manual, ibid, para 29.

tion of the economic resources of the EEZ and the continental shelf and the protection and preservation of the marine environment.<sup>22</sup>

(b) Hostile actions on the high seas involving the use of UMS must be conducted with due regard for the high seas freedoms of Neutral States and for the exploration and exploitation of the "Area" under the 1982 Law of the Sea Convention.

#### Commentary

	- (c) The obligation of due regard is without prejudice to recognized force protection measures, such as warning zones or defence bubbles.

#### Commentary


#### Rule 60

In sea areas beyond the territorial sea of any State, UMS operated by Neutral States for exclusively non-commercial governmental purposes must be respected.

<sup>22</sup>San Remo Manual, ibid, para 34.

<sup>23</sup>UNCLOS, see fn. 3, Article 1(1).

<sup>24</sup>San Remo Manual, see chapter "Section I: Outer Space", fn. 29, para 108; AMW Manual, see chapter "Section I: Outer Space", fn. 1, Rule 106.


Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

# Section V: Undersea Infrastructure, Systems and Devices

## Rule 61

With due regard for the rights of other States, coastal States are entitled to install, operate and maintain undersea systems and devices, whether military or civilian in nature, in their territorial sea, continental shelf and EEZ.


Subject to the coastal States' rights (including its rights to exercise jurisdiction and its rights regarding marine scientific research) and with due regard to the rights of other States, all States are entitled to install, operate and maintain undersea systems and devices for data collection and survey activities, whether military or civilian in nature, on the continental shelf or in the EEZ of other States.


<sup>1</sup> UNCLOS, see chapter "Section IV: Unmanned Maritime Systems", fn. 3, Article 60.

<sup>2</sup> UNCLOS, Article 87.

<sup>3</sup> UNCLOS, Article 81.

<sup>4</sup> G. Walker (ed.), Definitions for the Law of the Sea, (Leiden/Boston) (2012), page 241.

<sup>5</sup> See UNCLOS, see chapter "Section IV: Unmanned Maritime Systems", fn. 3, Articles 19 (2)(j), 21 (1)(g) and 40.

<sup>6</sup> For the importance of hydrographic surveys and nautical charting, including electronic charting, see UNGA resolution A/RES/66/231 of 24 December 2011.


# All States are entitled to install and operate undersea systems and devices in the high seas with due regard to the rights of other States.

## Commentary


#### Rule 64

# During an armed conflict:

(a) Enemy undersea systems and devices may not be attacked, unless they qualify as lawful targets.

<sup>7</sup> UNCLOS, Article 58 (1).

<sup>8</sup> UNCLOS, Article 58 (2).

	- (b) Subject to Rule 65, enemy undersea systems and devices may be captured outside neutral waters.

# Commentary


#### Rule 65

If innocently employed in their normal role, the following enemy civilian undersea systems and devices should be exempt from capture:

(a) Undersea systems and devices exclusively used for non-military scientific missions;

## Commentary

1. In principle, civilian enemy undersea systems and devices are liable to capture. Some undersea systems and devices, however, serve important scientific or humanitarian functions. Therefore, the same principles as those underlying the 1907 Hague Convention (XI)<sup>12</sup> should be applied. Accordingly, undersea sys-

<sup>9</sup> The definition of military objectives is included in Rule 77.

<sup>10</sup>San Remo Manual, see chapter "Section I: Outer Space", fn. 29, para 135.

<sup>11</sup>Ibid, para 22.

<sup>121907</sup> Convention (XI) Relative to Certain Restrictions with Regard to the Exercise of the Right of Capture in Naval War, see chapter "Section IV: Unmanned Maritime Systems", fn. 29.

tems and devices used for non-military scientific missions should be excluded from the right of capture.<sup>13</sup>

	- (b) Undersea systems and devices exclusively used for preventing or responding to pollution incidents in the marine environment; and

# Commentary

	- (c) Undersea systems and devices exclusively used for the collection of data necessary to warn the civilian population of natural disasters, such as tsunamis.

# Commentary


#### Rule 66

## Neutral undersea systems and devices that qualify as lawful targets are liable to capture.


<sup>13</sup>See also San Remo Manual, fn. 31, para 136(e).

<sup>14</sup>San Remo Manual, ibid, para 136(g).

<sup>15</sup>San Remo Manual, paras 67 and 146.

Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

Section VI: Submarine Cables and Pipelines

# Rule 67

States, having laid submarine cables or pipelines, or whose nationals have laid and operate such cables and pipelines, are entitled to take protective measures with a view to preventing or terminating any harmful interference.

#### Commentary


© The Author(s) 2020

<sup>1</sup> See the following provisions in UNCLOS, see fn. 58: Article 51(2)—archipelagic waters; Article 58(1)—EEZ; Article 79—continental shelf; Articles. 87(1) lit. (c), 112—high seas.

Y. Dinstein, A. W. Dahl, Oslo Manual on Select Topics of the Law of Armed Conflict, https://doi.org/10.1007/978-3-030-39169-0\_6


During an armed conflict, submarine pipelines and high voltage cables exclusively serving one or more Belligerent States may—if it is militarily necessary—be seized or destroyed subject to the applicable principles and rules of LOAC, in particular distinction, proportionality and the obligation to take feasible precautions.


<sup>2</sup> San Remo Manual, see chapter "Section I: Outer Space", fn. 29—Explanations, page 111.

Submarine communications cables, whether or not connecting occupied territory with neutral territory, may not be seized or destroyed even if they are serving one or more Belligerent States. Belligerent States must take care to avoid damage to such cables, unless they qualify as lawful targets.

#### Commentary


## Rule 70

# Submarine pipelines and high voltage cables connecting occupied territory with neutral territory must not be seized or destroyed except in the case of absolute necessity. They must likewise be restored and compensation paid when peace is concluded.


Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

# Section VII: Civilians Directly Participating in Hostilities

# Rule 71

Civilians directly participating in hostilities lose their protection from attack for such time as they do so.


<sup>1</sup> See chapter "Section I: Outer Space", fn. 13.

<sup>2</sup> US DoD Law of War Manual, see chapter "Section II: Cyber Operations", fn. 4 Section 5.9.1.2.

<sup>3</sup> International Committee of the Red Cross, ICRC Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (2009).

<sup>4</sup> US DoD Law of War Manual, see chapter "Section II: Cyber Operations", fn. 4, at 5.8.4 (discussing the duration for which a civilian in DPH is subject to attack),; HCJ 769/02 Public Committee Against Torture v. Government of Israel para. 27, 38–40 [2006] (Isr.).

Y. Dinstein, A. W. Dahl, Oslo Manual on Select Topics of the Law of Armed Conflict, https://doi.org/10.1007/978-3-030-39169-0\_7

timeframe for the loss of protection due to DPH would be analogous to that of their military counterparts, as the assigned function of operating RPAs or UMSs would be considered sufficient evidence of a continuous/ongoing pattern of DPH subjecting the civilian to deliberate attack.


# Rule 72

# Private military contractors (PMC) retain their civilian protection as long as they are not incorporated in the armed forces—including militia or volunteer corps—and do not directly participate in hostilities.

# Commentary

	- a. Guarding of store houses;
	- b. Escorting civilian dignitaries;
	- c. Undertaking construction works;
	- d. Engaging in food services;
	- e. Engineering;
	- f. Providing technical support;
	- g. Carrying out instruction tasks; and
	- h. Other non-combat activities.

# Rule 73

If persons who are authorized to accompany the armed forces without actually being members thereof—such as supply contractors—fall into the

<sup>5</sup> US DoD Law of War Manual, Section 5.9.1.2.

<sup>6</sup> See The Montreux Document On pertinent international legal obligations and good practices for States related to operations of private military and security companies during armed conflict (2008).

power of the enemy during an international armed conflict, they are entitled to the status of prisoners of war in accordance with the third Geneva Convention of 1949 Article 4(A)(4).

	- a. Civilian members of military aircraft crews;
	- b. War correspondents;
	- c. Members of labour units or of services responsible for the welfare of the armed forces;

<sup>7</sup> GC/III, see chapter "Section I: Outer Space", fn. 19, Article 4 A (4).

his behalf by notification to the detaining Power or to the Protecting Power. Should any doubt arise as to whether any such person is entitled to the status of prisoner of war, he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal".

8. This Rule is of course limited to International Armed Conflicts. It is not applicable to Non-International Armed Conflicts.

#### Rule 74

Persons who are authorized to accompany the armed forces without actually being members thereof, but participate directly in hostilities, are subject to attack by the enemy.

#### Commentary

1. The consensus view of the Group of Experts was that LOAC does not prohibit DPH by civilians, but only exposes them to certain consequences as a result of DPH. Accordingly, DPH itself cannot be properly characterized as a breach of LOAC or as a war crime. Nonetheless, DPH may result in a violation of applicable domestic criminal laws, either as a result of the DPH itself (e.g., in U.S. law the crime of providing material support to terrorism), or as a result of its consequences (e.g., an attempted or completed violation of domestic criminal prohibitions against murder, arson, aggravated assault, etc.).

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# Section VIII: Civilians Participating in Unmanned Operations

# Rule 75

In the context of armed conflict—whether international or non-international—civilians who conduct attacks using unmanned systems, including RPA and UMS, are directly participating in hostilities.


<sup>1</sup> Sandoz, Swinarski and Zimmermann (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (AP/I Commentary), (Geneva: Martinus Nijhoff Publishers) (1987), at page 619: "Thus direct" participation means acts of war which by their nature or purpose are likely to cause actual harm to the personnel and equipment of the enemy armed forces. It is only during such participation that a civilian loses his immunity and becomes a legitimate target."

6. This Rule applies to civilians supporting State armed forces, to civilians associated with other State agencies or organizations (such as intelligence services), and to civilians supporting non-State organized armed groups.

#### Rule 76

To facilitate the implementation of the principle of distinction in an international armed conflict, States should refrain from authorizing civilians to engage in attacks using unmanned systems.

#### Commentary


Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence and indicate if changes were made.

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Section IX: Military Objectives by Nature

# Rule 77

"Military objectives", as far as objects are concerned, are those objects which by their nature, location, purpose or use, make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

#### Commentary


#### Rule 78


© The Author(s) 2020 Y. Dinstein, A. W. Dahl, Oslo Manual on Select Topics of the Law of Armed Conflict, https://doi.org/10.1007/978-3-030-39169-0\_9

# attacked independently of its present "use", while a military objective by "use" can be attacked only if it is actually used for military purposes.

# Commentary


# Rule 79

# The classification of an object as a military objective by "nature" is not altered only because it is in disuse or under repair, unless its fundamental character has changed.

## Commentary

1. Even when not in use, such objects always constitute lawful targets during armed conflict. For example, an abandoned tank is still a military objective by nature, if it is capable of making an effective contribution to military action (e.g., it can be repaired/re-manned and used consistent with its nature). See also comment 2 to Rule 78.

<sup>1</sup> Note e.g. ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, paras. 71–79 (13 June 2000).


(a) An object qualifying as a military objective by "nature" can be either movable or immovable.

# Commentary

	- (b) Examples of movable military objectives by "nature" include military aircraft (other than medical aircraft); tanks and armoured personnel carriers (APCs) (other than medical transport); missiles and other weapons; military equipment; warships; UMS operated by the armed forces; military satellites; and mobile military ground stations.

	- (c) Examples of immovable military objectives by "nature" include military fortifications, facilities and depots; military ports and airfields; missile silos; military satellite communications facilities; armaments factories; and Ministries of Defence.

<sup>2</sup> See also, DoD Law of War Manual, chapter "Section II: Cyber Operations", fn. 4, Section 6.6.1.1.


# Rule 81

#### Military Command, Control and Communications centres (C<sup>3</sup> ) are military objectives by "nature", whether movable or immovable.

# Commentary


# Rule 82

Computers that are components of weapons, weapon systems or other military systems (such as military radar stations or military Outer Space systems) are military objectives by "nature".


<sup>3</sup> See also, DoD law of War Manual, Section 5.6.4.


In addition to the items listed in Rules 80 through 82, which are military objectives by nature, objects that will presumptively qualify as military objectives by "nature" include, but are not limited to:

#### Commentary


#### (a) Main railway lines, main roads, bridges and tunnels;

#### Commentary

1. Branch railway lines are military objectives by "nature" if they connect places of military significance such as military bases, depots, weapon systems and munition factories and important airfields or harbours to the main railway network.


# (b) If of military importance, data lines, fibre-optic cables, telephone lines and telegraph lines;

# Commentary


# (c) Airports and airstrips of military significance;

#### Commentary


# (d) Harbours of military significance;


<sup>4</sup> AP/I, see fn. 15, Article 51(5)(b). The principle of proportionality is recited in para 1 of the Commentary to Rule 11.

# (e) Electricity production facilities serving military needs, including power transmission facilities and equipment;

#### Commentary

	- (f) Oil production facilities for use by the enemy or its co-belligerents, oil terminals, refineries, crude oil and refined products storage depots, and pipelines.

#### Commentary


#### (g) Outer space systems and assets belonging to the armed forces.

#### Commentary

1. See Rule 9.

<sup>5</sup> AP/I, ibid, Article 51(5)(b). The principle of proportionality is recited in para 1 of the Commentary to Rule 11.

<sup>6</sup> AP/I, ibid, Article 58.

The status of a military objective by "nature" is not altered, even if it is also used for civilian purposes.

# Commentary


# Rule 85

Attacks that treat as a single object of attack a number of clearly separated and distinct lawful targets located in a city, town, village or area containing a similar concentration of civilians or civilian objects, are considered indiscriminate and are prohibited.


<sup>7</sup> AP/I, ibid, Article 51(5)(b) and Article 57. The principle of proportionality is recited in para 1 of the Commentary to Rule 11.

6. As in other instances when the attacker is facing the risk of a breach of the principle of proportionality, the availability of precision-guided munitions (PGM) may facilitate striking lawful targets in a manner that will avoid—or, in any event, minimize—the expected collateral damage to civilians or civilian objects.

#### Rule 86

This Section is without prejudice to Article 56 (5) of AP/I and Article 15 of AP/II for those States Parties bound thereby. Accordingly, military objectives must not be attacked if erected for the sole purpose of protecting from attack works or installations containing dangerous forces (provided that they are not used in hostilities, except for defensive actions necessary to respond to attacks against the protected works or installations).

#### Commentary


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# Section X: Civil Aviation and Civilian Airliners

# Rule 87

(a) During an armed conflict, whether international or non-international, States are entitled to restrict or prohibit entry into their national airspace.


<sup>1</sup> "Air" or "airspace" is defined in the AMW Manual Rule (1)(a), see chapter "Section I: Outer Space", fn. 1, as "the air up to the highest altitude at which an aircraft can fly and below the lowest possible perigee of an earth satellite in orbit. Under international law, airspace is classified as either national airspace (that over the land, internal waters, archipelagic waters, and territorial seas of any State) or international airspace (that over contiguous zones, exclusive economic zones, the high seas, and territory not subject to the sovereignty of any State)."

<sup>2</sup> See 1944 Convention on International Civil Aviation (Chicago Convention), ICAO Doc. 7300/9, Articles 1 and 2.

<sup>3</sup> Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Merits, Judgment. I.C.J. Reports 1986, page 14 ff., at page 128, para. 251: "The principle of respect for territorial sovereignty is also directly infringed by the unauthorized overflight of a State's territory by aircraft belonging to or under the control of the government of another State."

	- (b) Subparagraph (a) is without prejudice to the rights of transit passage above international straits and of archipelagic sea lanes passage.


#### Rule 88

# During an international armed conflict:

(a) Belligerent military aircraft are prohibited from entering neutral national airspace.

<sup>4</sup> Chicago Convention, Article 9 (a) and (b), see fn. 2. See also ibid., Annex 2 Rules of the air, page 3-1 (Article 3-1-10). A similar right to limit the use of airspace in "areas of active hostilities or of military occupation, and in time of war along the supply routes leading to such areas" is found in the 1944 International Air Services Transit Agreement, UNTS, vol. 84, page 389, Article 1.

<sup>5</sup> Chicago Convention, see fn. 2, Article 9.

<sup>6</sup> UNCLOS, see chapter "Section IV: Unmanned Maritime Systems", fn. 3, Articles 38 and 44. 7 Ibid. Articles. 53 and 54.


#### (b) Subparagraph (a) is without prejudice to the rights of transit passage above international straits and of archipelagic sea lanes passage.

#### Commentary

	- (c) Neutral States have a duty to prevent or terminate the violation of their national airspace by belligerent military aircraft.

#### Commentary

	- (d) If a belligerent military aircraft has been forced to land, the crew must be interned for the duration of the armed conflict.

#### Commentary

1. This Rule is based on article 11 of the 1907 Hague Convention V.

#### Rule 89

Civil aviation may be prevented from using the airspace covered by a no-fly zone (within belligerent national airspace) or by an exclusion zone (within international airspace).


#### Rule 90

(a) For the purposes of this Section, "civilian aircraft" means any aircraft that is not used in military, customs or police services of a State.

#### Commentary

	- (b) Civilian aircraft may not be attacked unless they qualify as lawful targets. Any attack on such aircraft is subject to the applicable principles and rules of LOAC.

#### Commentary


#### Rule 91

(a) "Civilian airliner" means a civilian aircraft identifiable as such and engaged in carrying civilian passengers in scheduled or non-scheduled service.

<sup>8</sup> Dealt with in the AMW Manual, see chapter "Section I: Outer Space", fn. 1, Section P.

<sup>9</sup> See also the San Remo Manual, see chapter "Section II: Cyber Operations", fn. 29, para 72.

1. This definition is based on the definition made in the AMW Manual Article (1) (i).

(b) Civilian airliners are civilian objects and entitled to particular care in terms of precautions.

#### Commentary

	- (c) The mere fact that a civilian airliner is carrying some enemy military personnel, equipment, or supplies together with civilian passengers does not deprive it of its entitlement to particular care in terms of precautions.

#### Commentary

1. When a civilian airliner, which is supposed be engaged in carrying civilian passengers, carries enemy military personnel, it becomes a military objective by

<sup>10</sup>Commentary on the AMW Manual, see chapter "Section I: Outer Space", fn. 1, page 156 (Commentary to Rule 58).

<sup>11</sup>Commentary on the AMW Manual, ibid, page 31ff. (Commentary to Rule 1(i)), 137 (introductory Commentary to Rule 40), 155 (Rule 58) and 156 (Commentary to Rule 58). San Remo Manual, see chapter "Section I: Outer Space", fn. 29, page 92 (Commentary to para 13(m)).

<sup>12</sup>Commentary on the AMW Manual, see chapter "Section I: Outer Space", fn. 1, page 31 (Commentary to Rule 1(i)).

<sup>13</sup>As mentioned as one of two conflicting views in Commentary on the AMW Manual, ibid, page 155 (Commentary to Rule 58), see chapter "Section I: Outer Space", fn. 1.

use. However, attack of a civilian airliner can only be considered in the most extreme circumstances and in compliance with the proportionality rule, bearing in mind that civilian airliners are entitled to particular care in terms of precautions.

	- (d) If intercepted within a no-fly or an exclusion zone, civilian airliners continue to be entitled to particular care in terms of precautions.

#### Commentary

1. With regard to interception, see Rule 92 with accompanying Commentary.

#### Rule 92

Upon reasonable grounds, civilian airliners are liable to interception and inspection at a sufficiently safe airfield, subject to the following:

#### Commentary

	- (a) During an international armed conflict, interception may be exercised by belligerent military aircraft anywhere outside neutral national airspace.

	- (b) During a non-international armed conflict, interception may be exercised only by the State Party to the armed conflict and exclusively within its national airspace. If, in extraordinary situations, the respective aircraft is present in international airspace, such interception should be exercised only in the vicinity of that State's national airspace.

<sup>14</sup>The due regard to safety norm is also expressed in the guidelines by ICAO: International Civil Aviation Organization, Manual concerning Interception of Civil Aircraft (2nd ed. 1990), ICAO Doc. 9433-AN/926.


#### Rule 93

#### Refusal to obey an order to land or to change course may render a civilian airliner a lawful target.

#### Commentary


#### Rule 94

The responsibility of States that provide air-traffic services for the safety of civil aviation remains intact during an armed conflict.


<sup>15</sup>A FIR is defined in the AMW Manual as "an aviation term used to describe airspace with specific dimensions, in which a flight information service and an alerting service are provided. Oceanic airspace is divided into Oceanic Information Regions and delegated to controlling authorities bordering that region. The division of authorities is done by international agreement through ICAO." See here Commentary on the AMW Manual, see chapter "Section I: Outer Space", fn. 1, page 239. See also Chicago Convention, fn. 2, Annex 2 Rules of the air, page 1–4.

<sup>16</sup>See 1990 Manual Concerning Safety Measures Relating to Military Activities Potentially Hazardous to Civil Aircraft Operations, ICAO Doc. 9554, page 14, para. 10.2.

determine whether such operations in or through the area of conflict should be avoided or may be continued under specified conditions. An international Notice to Airmen (NOTAM) containing the necessary information, advice and safety measures to be taken should then be issued and subsequently updated in the light of developments." 17

3. A special problem occurs where such air traffic services are provided by an authority or entity located in a third State, as it might be difficult to gather sufficient information on the relevant risk levels in the foreign areas where it provides the said services. For instance, the Swiss company Skyguide—Swiss Air Navigation Services Limited—provides air traffic services for Switzerland, but also for adjoining areas in Germany, Austria, France and Italy.<sup>18</sup> Should a non-international or international armed conflict take place in any of these areas beyond the Swiss borders, the authorities of the relevant territories may restrict or close their airspace although the airspace is normally handled by Skyguide. No such authority to close or restrict national airspace would seem to have been delegated to the company by the abovementioned States, but it is to be expected that the company will issue statements regarding the perceived threat level. Here, its potential responsibility for damage or destruction following insufficient warnings to civilian air traffic may presumably be reduced considering that it has less access to situational information on the current or planned military operations than would be the case for a national agency providing such services.

#### Rule 95

(a) During an armed conflict, States should—whenever necessary for the safety of civil aviation—restrict access to their national airspace (in whole or in part) by civilian airliners.


<sup>171990</sup> Manual Concerning Safety Measures Relating to Military Activities Potentially Hazardous to Civil Aircraft Operations, see fn. 16, page 14, para. 10.3.

<sup>18</sup>See Skyguide, Annual Report 2015 (Geneva 2016) pages 22 and 28.


<sup>19</sup>Chicago Convention, see fn. 2, Annex 11, Art. 2.17, Annex 15, Art. 5.1.1.1 (l) and (n), and Annex 17, Arts. 2.1.2, 2.4.3, and 3.1.3. Whether the Standards and Recommended Practices contained in annexes to the Chicago Convention are binding on the State parties is on the other hand disputed. For the ICAO view, see Res. A36-13 (2007) Consolidated statement of continuing ICAO policies and associated practices related specifically to air navigation. See as well statements by the ICAO Secretary General Raymond Benjamin in a letter to state civil authorities, 24 July 2014, page 2, para. 5.

<sup>20</sup>Articles 2.17 and 2.18. See also Manual Concerning Safety Measures Relating to Military Activities Potentially Hazardous to Civil Aircraft Operations, see fn. 16.

<sup>21</sup>A slightly different view might be held by the Dutch Safety Board. See Dutch Safety Board, Crash of Malaysia Airlines flight MH17 Hrabove, Ukraine, 17 July 2014 (The Hague, October 2015) page 172. Here, the Manual Concerning Safety Measures Relating to Military Activities Potentially Hazardous to Civil Aircraft Operations, see fn. 11, para. 3.1.1 holds that "[i]n the event that a sudden outbreak of armed hostilities or any other factors preclude this normal co-ordination process, appropriate State and ATS authorities, civil aircraft operators and pilots-in-command of aircraft must assess the situation based on the information available and plan their actions so as not to jeopardize safety."

<sup>22</sup>Dutch Safety Board, Crash of Malaysia Airlines flight MH17 Hrabove, Ukraine, 17 July 2014 (The Hague, October 2015) pages 199–205 (Libya, Northern Mali and, after the MH17 incident, the Ukraine).

<sup>23</sup>Dutch Safety Board, Crash of Malaysia Airlines flight MH17 Hrabove, Ukraine, 17 July 2014 (The Hague, October 2015) pages 173–174, 221, 232 and 242.

(b) A State must keep under review the level of danger to civil aviation under its air traffic control and inform the relevant foreign actors of any imminent dangers to aviation in the airspace for which it is responsible.

#### Commentary


#### Rule 96

Civilian airliners should avoid areas of potentially hazardous military activity, even if civil aviation has not been restricted or prohibited in the respective airspace.

<sup>24</sup>The Corfu Channel Case, Judgment 9 April 1949, I.C.J. Reports 1949, pages 4–169, page 22: "The obligations incumbent upon the Albanian authorities consisted in notifying, for the benefit of shipping in general, the existence of a minefield in Albanian territorial waters and in warning the approaching British warships of the imminent danger to which the minefield exposed them. Such obligations are based, not on the Hague Convention of 1907, No. VIII, which is applicable in time of war, but on certain general and well-recognized principles, namely: elementary considerations of humanity, even more exacting in peace than in war; the principle of the freedom of maritime communication; and every State's obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States." More generally, a coastal State is under an obligation to "give appropriate publicity to any danger to navigation, of which it has knowledge, within its territorial sea" according to UNCLOS, see chapter "Section IV: Unmanned Maritime Systems", fn. 1, Article 24 (2).

<sup>25</sup>Dutch Safety Board, Crash of Malaysia Airlines flight MH17 Hrabove, Ukraine, 17 July 2014 (The Hague, October 2015) pages 207 and 262. The Dutch Safety Board report recommends on page 264 that ICAO member States "[e]nsure that States' responsibilities related to the safety of their airspace are more strictly defined in the Chicago Convention and the underlying Standards and Recommended Practices, so that it is clear in which cases the airspace should be closed."

<sup>261990</sup> Manual Concerning Safety Measures Relating to Military Activities Potentially Hazardous to Civil Aircraft Operations, see fn. 16, page 14, para. 10.3. See also Dutch Safety Board, Crash of Malaysia Airlines flight MH17 Hrabove, Ukraine, 17 July 2014 (The Hague, October 2015) pages 173 and 208–209. Chicago Convention, see fn. 2, Annex 15 Article. 5.1.1 here holds that "[a] NOTAM shall be originated and issued promptly whenever the information to be distributed is of a temporary nature and of short duration or when operationally significant permanent changes, or temporary changes of long duration are made at short notice, except for extensive text and/or graphics."

1. This Rule is based on Rule 54 of the AMW Manual and is a corollary non-binding Rule to the one applicable to States in Rule 95, in order to ensure the safety of civil aviation in time of armed conflict.

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# Section XI: Destruction of Property

# Rule 97

It is specifically prohibited to destroy, damage or seize enemy private or public property unless such destruction is justified by military necessity under the principles and rules of LOAC.


<sup>1</sup> The rule appeared at the Brussels Conference (1874), The Laws of Armed Conflicts, page 21, Article 13(g). Today, its customary status is expressed for example in Henckaerts and Doswald-Beck, International Committee of the Red Cross Customary International Humanitarian Law (CIHL), (Cambridge: Cambridge University Press) (2005, reprint 2009), vol. I, rule 50, and the Rome Statute of the International Criminal Court (Rome Statute) (1998), The Laws of Armed Conflicts, page 1309, Article 8(2)(b)(xiii).


In an international armed conflict, any extensive destruction or seizure of property, not justified by military necessity and carried out unlawfully and wantonly constitutes a war crime.

<sup>2</sup> AP/I, see chapter "Section I: Outer Space" I, fn. 13, Article 53, Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954), The Laws of Armed Conflicts, page 747, Article 4. Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict (1999), The Laws of Armed Conflicts, page 1037, Article 6. See also Rule 98 and chapter "Section XIV: Humanitarian Assistance" of this Manual.

<sup>3</sup> AP/I, ibid, Article 12, and GC/I, see chapter "Section I: Outer Space", fn. 19, Article 19. AMW Manual, see chapter "Section I: Outer Space", fn. 1, Section L. San Remo Manual, see chapter "Section I: Outer Space", fn. 29, para 169–183.


#### Rule 99

(a) It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.

#### Commentary

1. This Rule is based on Articles 54(2) of AP/I and 14 of AP/II.

<sup>4</sup> See Rule 97 with regard to the scope of application.

<sup>5</sup> As already expressed in the Lieber Code.

<sup>6</sup> In re List and Others (Hostages Trial), United States Military Tribunal at Nuremberg, in Annual Digest and Reports of Public International Law Cases (1948), at page 647.

	- (b) In recognition of the vital requirements of any Party to the conflict in the defence of its national territory against invasion, derogation from the prohibition in subparagraph (a) may be made by a Party to the conflict within such territory under its own control where required by imperative military necessity.


#### Rule 100

Rules 97 and 98 are without prejudice to specific rules on capture as booty of war or as prize.

#### Commentary

1. Capture of property as booty of war or for prize is governed by specific rules.<sup>7</sup> When capture or destruction is lawful according to these specific rules, the acts are also ipso facto required by military necessity and will not amount to acts of wantonness.

#### Rule 101

In a non-international armed conflict, destruction or seizure is not prohibited when directed against items illegally appropriated or produced (such as oil or opium) by non-State armed groups and used by them to generate revenue for the purpose of continuing the hostilities.

<sup>7</sup> Capture of war booty is a recognized lawful practice in customary international law, see CIHL, Rule 49, see fn. 1. Capture for prize at sea is dealt with in the San Remo Manual, see chapter "Section I: Outer Space", fn. 29, para 135–158, and in the AMW Manual, see chapter "Section I: Outer Space", fn. 1, Section U.


Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence and indicate if changes were made.

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<sup>8</sup> See US DoD Manual, see chapter "Section II: Cyber Operations", fn. 4, at page 237–238.

# Section XII: Surrender

# Rule 102

Enemy military personnel and civilians who have been directly participating in hostilities who manifest the intent to surrender and who comply with the additional requirements of Rules 103 and 104 are hors de combat and may not be denied quarter.


<sup>1</sup> GC/III, see chapter "Section I: Outer Space", fn. 19, Article 4.

<sup>2</sup> 1907 Hague Regulations, see chapter "Section I: Outer Space", fn. 13, Article 23: "In addition to the prohibitions provided by special Conventions, it is especially forbidden: ... (d) to declare that no quarter will be given."

Article 40 of AP/I.<sup>3</sup> To deny quarter to an enemy means to refuse to accept an offer to surrender.

	- a. During an engagement, it may be impossible to distinguish between the individual who has attempted to offer his or her surrender and his/her comrades who continue the fight; and
	- b. The soldier purporting to surrender may be conspiring with his/her comrades, acting perfidiously in order to lure the enemy into a trap. See Rule 104 and the important conditions set out in Rule 103.

## Rule 103

#### In order to be valid, surrender must meet the following conditions:

#### (a) The offer to surrender is communicated in a clear manner to the enemy.


<sup>3</sup> AP/I, see chapter "Section I: Outer Space", fn. 13, Article 40: "It is prohibited to order that there shall be no survivors, to threaten an adversary therewith or to conduct hostilities on this basis."

<sup>4</sup> 1907 Hague Regulations, see chapter "Section I: Outer Space", fn. 13, Article 32.

which once meant only a request to parley, is today also used as a means of communicating an intention to surrender.


# (b) The offer to surrender is genuine.

	- a. Time available for deliberation and for consideration of ambiguous offers of surrender.
	- b. Risk to the attacking party.
	- c. Cultural mores of the enemy forces with respect to surrender.
	- d. Prior history with respect to the conduct of the enemy forces in similar situations.
	- e. Enemy history of compliance with LOAC, including with respect to perfidy.
	- f. Other considerations that may bear on the genuineness of the offer.

<sup>5</sup> AMW Manual, see chapter "Section I: Outer Space", fn. 1, Comment 2 on Rule 128.


# (c) The offer to surrender must be unconditional

#### Commentary

	- (d) Those offering to surrender have laid down their arms and do not engage in any further hostile acts.

# Commentary


## (e) No attempt is made to evade capture.


<sup>6</sup> DoD Law of War Manual, see chapter "Section II: Cyber Operations", fn. 4, 5.9.2.3.

<sup>7</sup> AP/I, see chapter "Section I: Outer Space", fn. 13, Article 37.

	- (f) Those who offer to surrender strictly comply with instructions from the adversary.


# Rule 104

An offer to surrender may not be genuine if manifested in circumstances in which it is not feasible for the opposing party to accept the surrender. Accordingly, the offer of surrender by ground forces to an aircraft may be invalid if taking the forces into custody is not feasible in the prevailing circumstances.

	- a. A military aircraft flying over enemy positions behind enemy lines discovers an enemy tank and observes that its crew has raised their hands. There are two issues here: (i) whether the conditions laid down in Article 103(a) through (e) appear to have been fulfilled and (ii) whether capture can be effected under Rule 104.
	- b. For example, if a small unit the size of a patrol operating in contested territory encounters an enemy infantry battalion offering to surrender, capture may not be possible. This example must, however, be understood without prejudice to Article 41(3) of AP/I and the duty to release combatants who have fallen into the power of the enemy under unusual circumstances that prevent their evacuation.<sup>8</sup> See also Rule 105(a).

<sup>8</sup> AP/I, see chapter "Section I: Outer Space", fn. 13, Article 41(3): "When persons entitled to protection as prisoners of war have fallen into the power of an adverse Party under unusual conditions of combat which prevent their evacuation as provided for in Part III, Section 1, of the Third Convention, they shall be released and all feasible precautions shall be taken to ensure their safety." The customary status of this rule is confirmed by several military manuals, including the US DoD Manual, see chapter "Section II: Cyber Operations", fn. 4, para 9.9.3.

among the Group of Experts. According to some of the Experts, the possibility of the taking of such persons into custody is irrelevant to the genuineness of the offer to surrender. Another view would preclude ground forces from gaining hors de combat status vis-a-vis an aircraft because an offer to surrender cannot be genuine when it is factually impossible for the opposing party to accept. According to an intermediate view, the validity of the offer by forces surrendering to an aircraft has to be determined on a case-by- case basis (e.g., when there is an effective possibility of capture owing to the proximity to the contact zone).


# Rule 105

(a) Unless released, captured persons who are entitled to Prisoner of War status must be transported, as soon as it is practicable, to a Prisoner of War Camp.


<sup>9</sup> See fn. 170.

Law") may, instead of being interned in a POW camp, serve sentences of punitive confinement under the same conditions as those applying to members of the armed forces of the Detaining Power.

(b) Captured enemy combatants may be detained temporarily in a forward transit, screening or detention facility, or a field hospital.

#### Commentary

1. Article 19 of GC/III allows for temporary internment in a danger zone owing to the prevailing circumstances.

# Rule 106

In non-international armed conflicts, the legal status of Prisoner of War does not apply, but all captured persons must at all times be treated humanely in conformity with applicable international standards, regardless of whether the captured persons are subjected to criminal prosecution.

# Commentary

	- a. Treated humanely without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria;
	- b. Protected against violence to life and person, torture, or cruel, humiliating and degrading treatment; and
	- c. Afforded the judicial guarantees recognized as indispensable by civilized peoples, if subject to criminal proceedings. In this regard, see chapter "Section XVII: International Criminal Law".

Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

# Section XIII: Search and Rescue

# Rule 107

For the purposes of this Manual, "Shipwrecked" means persons, whether military or civilian, who are in peril at sea or in other waters during an armed conflict as a result of misfortune affecting them or the vessel, aircraft, or spacecraft carrying them.


shipwreck from any cause and includes forced landings at sea by or from aircraft (first paragraph of Article 12 of GC/II).

6. There is no evidence in general State practice to the effect that persons can reach a coast and nevertheless remain "shipwrecked" although such position has been taken by some.

# Rule 108

Shipwrecked and other persons hors de combat are protected from attack, provided that they abstain from any hostile act and no attempt is made to evade capture or escape.

#### Commentary

	- a. Those who have clearly expressed an intention to surrender; and
	- b. Those who are incapacitated. This latter category falls into three subsets: sick; wounded; and shipwrecked.

Upon due consideration, the majority of the Group of Experts decided not to retain the separate category of Article 41(a) of AP/I, i.e. persons "in the power of an adverse Party", in view of the fact that such category is irrelevant for the purpose of the present Section.


## Rule 109


to surrender, unless it is apparent that they are engaging in a hostile act or attempting to evade capture.

(c) Airborne troops are not protected by this Rule.

# Commentary


# Rule 110

# A person who is hors de combat remains as such until the circumstances that gave rise to that status are altered.

# Commentary


## Rule 111

(a) A shipwrecked combatant remains hors de combat during rescue provided he or she refrains from all acts of hostility.

	- (b) "During rescue" means the time during which a shipwrecked individual is in the process of being rescued from sea or other waters. This includes

the time during which the person is being assisted onto land, or into an aircraft, a vessel or another conveyance.

#### Commentary

1. This Rule is consistent with the definition of "shipwrecked" found in Rule 107 and Article 8 (b) of AP/I. It is designed to clarify that point during a rescue operation at which a shipwrecked individual might regain combatant status. See also, Rule 112 and its Commentary.

#### Rule 112

A combatant or other person, after being rescued and transported onto land, or into an aircraft, a vessel or another conveyance capable of transportation to a safe location, is no longer hors de combat by reason of being shipwrecked.

#### Commentary


#### Rule 113

The conduct of search and rescue operations does not cause military aircraft, vessels or other conveyances, or military personnel conducting the operations, to be protected from attack, regardless of whether the person being rescued is civilian or military.


# Rule 114


#### Commentary


#### Rule 115


#### Commentary

1. Medical aircraft, that is to say, aircraft exclusively employed for the removal of wounded and sick and for the transport of medical personnel and equipment,1 enjoy specially protected status within the scope of Articles 36 and 37 of GC/I, Articles 25–31 of AP/I and customary LOAC.


#### Rule 116

#### Hospital ships and coastal rescue craft lose their specially protected status if they engage in conduct inconsistent with the conditions of their protection and if the requirements of the law of naval warfare are met.

#### Commentary

1. Hospital ships, that is to say, ships built or equipped specially and solely with a view to assisting the wounded, sick and shipwrecked, to treating them and to transporting them,<sup>5</sup> and coastal rescue craft, i.e. craft employed by the State or

<sup>1</sup> GC/I, see chapter "Section I: Outer Space", fn. 19, Article 36.

<sup>2</sup> AP/I, see chapter "Section I: Outer Space", fn. 13, Articles 25–27. AMW Manual, see chapter "Section I: Outer Space", fn. 1, Rules 77 and 78.

<sup>3</sup> AMW Manual, ibid, Rule 38.

<sup>4</sup> GC/I, see chapter "Section I: Outer Space", fn. 19, Article 21.

<sup>5</sup> GC/II, ibid, Article 22.

by the officially recognized lifeboat institutions for coastal rescue operations,<sup>6</sup> enjoy special protection in accordance with Article 34 of GC/II and Article 22 of AP/I. This means that hospital ships as well as coastal rescue craft may be neither attacked nor captured.


## Rule 117

Non-military aircraft other than medical aircraft, and non-naval vessels other than hospital ships and coastal rescue craft, which are engaged in search and rescue operations, may not be attacked unless they:

<sup>6</sup> GC/II, ibid, Article 27.

<sup>7</sup> GC/II, ibid, Article 34.

<sup>8</sup> See as well US DoD Manual, chapter "Section II: Cyber Operations", fn. 4, para 7.12.2.7.

<sup>9</sup> San Remo Manual, see chapter "Section II: Cyber Operations", fn. 4, para 51.

<sup>10</sup>San Remo Manual, ibid, para 52.

(a) Assist a rescued enemy combatant, or other person liable to capture, to escape or evade capture;

#### Commentary

1. Civilians engaged in efforts to return combatants to the battlefield are directly participating in hostilities (see chapter "Section VII: Civilians Directly Participating in Hostilities") and thus no longer protected against attack.

#### (b) Refuse a demand to surrender an enemy rescued combatant; or

#### Commentary

1. A refusal to surrender an enemy rescued combatant may also amount to direct participation in hostilities.

# (c) Otherwise make an effective contribution to the enemy's military action.

#### Commentary

1. The Rule in (c) serves as a reminder that objects may become lawful targets by conduct not covered in (a) or (b), such as the transmission of military intelligence to the enemy.

### Rule 118

The Rules of this Section are without prejudice to the right of the parties to the conflict to enter into agreements on the protection of aircraft, vessels or other vehicles employed for search and rescue.

#### Commentary

1. This Rule reflects the principle that parties to the conflict may always agree on the creation of additional protections that are not required by LOAC, and that search and rescue operations represent an understandable area for such additional protections.<sup>11</sup>

<sup>11</sup>See for example, AP/I, chapter "Section I: Outer Space", fn. 13, Article 26 (1) and 27 and 28 (4).

Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

# Section XIV: Humanitarian Assistance

#### Rule 119


#### Commentary

1. "Humanitarian aid" or "humanitarian relief" is not defined by treaty LOAC,<sup>1</sup> but GC/I-IV and AP/I provide the key elements thereof: "medical and hospital stores", "essential foodstuffs, clothing and tonics intended for children under fifteen, expectant mothers and maternity cases", <sup>2</sup> "other articles if the resources of the occupied territory are inadequate", <sup>3</sup> "clothing" <sup>4</sup> and "bedding, means of shelter, other supplies essential to the survival of the civilian population". 5

<sup>1</sup> For the purposes of this Manual the expressions "humanitarian aid", "humanitarian assistance" and 'humanitarian relief' are synonymous.

<sup>2</sup> GC/IV, see chapter "Section I: Outer Space", fn. 19, Article 23.

<sup>3</sup> GC/IV, ibid, Article 55.

<sup>4</sup> GC/IV, ibid, Article 59.

<sup>5</sup> AP/ I, see chapter "Section I: Outer Space", fn. 13, Article 69 (1).

Y. Dinstein, A. W. Dahl, Oslo Manual on Select Topics of the Law of Armed Conflict, https://doi.org/10.1007/978-3-030-39169-0\_14




<sup>6</sup> GC/IV, see chapter "Section I: Outer Space", fn. 19, Article 55.

<sup>7</sup> GC/IV, ibid, art. 59.

<sup>8</sup> See UN GA Res 46/82 (1991), Annex, paragraph 4.


Withholding of consent can be arbitrary if it is not compatible, inter alia, with other obligations under applicable principles and rules of LOAC, or if it is unreasonable given the needs of the civilian population in the prevailing circumstances.

#### Commentary

	- a. A State is capable of providing, and willing to provide, an adequate and effective humanitarian assistance on the basis of its own resources;
	- b. An affected State has accepted appropriate and sufficient assistance from elsewhere; or
	- c. The relevant offer is not extended in accordance with the principles of neutrality, impartiality, and non-discrimination, as laid down in Rule 127. Conversely, where an offer of assistance is made in accordance with the foregoing and no alternate sources of humanitarian assistance are available, there would be a strong inference that a decision to withhold consent is arbitrary.<sup>11</sup>

#### Rule 122

Consent is not required if the Security Council has made use of its powers under the Charter of the United Nations to authorize in a binding manner relief actions for the civilian population in any situation of armed conflict.

<sup>9</sup> AP/ I, see chapter "Section I: Outer Space", fn. 13, Article 70 (1); "Parties" in plural, since the consignments may travel through several countries.

<sup>10</sup>See the position in the US DoD Manual, see chapter "Section II: Cyber Operations", fn. 4, para 17.8.1: "States may withhold consent for, inter alia, legitimate military reasons, but should not arbitrarily withhold consent".

<sup>11</sup>Report ILC, 66th Session, No. A/69/10 (UN, New York, 2014), Chapter V.


# Rule 123

# Offers to provide humanitarian relief consignments to the civilian population of another State shall not be regarded as:


# Commentary


#### Rule 124

# Humanitarian relief consignments may be provided in accordance with Rule 119 and 120 either by States or by impartial humanitarian organizations, such as the International Committee of the Red Cross.


<sup>12</sup>ICJ, Nicaragua v. United States of America, see chapter "Section X: Civil Aviation and Civilian Airliners", fn. 3, paragraphs 242 and 97.

(a) States should allow and facilitate rapid and unimpeded passage of humanitarian relief consignments, equipment and personnel in accordance with Rules 119 and 120, subject to technical arrangements.

#### Commentary

	- (b) Technical arrangements may derive from operational exigencies and may include matters such as:
		- i. Verification that the relief supplies do not contain weapons, munitions, military equipment or other supplies reasonably expected to be used for military purposes;
		- ii. Regulation of the relief consignment in order to prescribe times and routes in such a way as to avoid hampering military operations and to conform to the maximum extent with security requirements;
		- iii. Establishment of air corridors for the transit of relief air transports; or
		- iv. Organisation of air drops or landings.

## Commentary

	- (c) Technical arrangements under sub-paragraph (b) must in no case be misused in order to make the provision of relief consignments inoperative or to delay the forwarding of relief unduly.

#### Rule 126

(a) Personnel of impartial humanitarian relief organizations, acting within their mandates, must be respected and protected and must not be made the object of attack or of any action that arbitrarily prevents them from discharging their mandate. The protection extends to their humanitarian transports, installations, goods and activities.

<sup>13</sup>See 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War, chapter "Section I: Outer Space", fn. 19.

(b) Only in the case of imperative military necessity may the activities of personnel of impartial humanitarian relief organizations be limited or their movements temporarily restricted.


<sup>14</sup>See as well AMW Manual, see chapter "Section I: Outer Space", fn. 1, at page 36 ff. and UN Security Council resolutions 2175 (2014) and 2286 (2016)

<sup>15</sup>The US DoD Law of War Manual, see chapter "Section II: Cyber Operations", fn. 2, at page 1035, does not specifically require the humanitarian personnel to be approved or authorized, but notes that the safety of humanitarian personnel is a legitimate consideration for a Government in consenting to their operations.

<sup>16</sup>AP/I, see chapter "Section I: Outer Space", fn. 13, Article 71(1), and CIHL, see chapter "Section XI: Destruction of Property", fn. 1, Rule 31.

<sup>17</sup>Convention on the Safety of UN and Associated Personnel (1994), UNTS, vol. 2051, page 363, Article 7.

<sup>18</sup>AP/Commentary, see chapter "Section VIII: Civilians Participating in Unmanned Operations", fn. 1, to Article 10, para 446.

Humanitarian relief personnel, transports, installations, goods and activities may lose special protection if the relief actions are not:

# Commentary

1. Non-compliance with the conditions listed in subparagraph (a) through (d) may deprive the humanitarian personnel and objects of their special protections but does not affect their civilian protection unless the personnel are directly participating in hostilities or, in the case of objects, they are effectively contributing to the enemy's military action.

# (a) Exclusively humanitarian and impartial in character;

# Commentary

1. See Rule 119 (a).

# (b) Conducted without any adverse distinction;

# Commentary


## (c) Executed in accordance with the terms of their mission; or

# Commentary

	- (d) In compliance with the technical arrangements issued by the States or parties concerned.

## Commentary

1. For examples of technical arrangements, see Rule 125 (b).

<sup>19</sup>AP/Commentary, ibid, to Article 70(2), para 2825.

Whenever circumstances permit, parties to the conflict should suspend attacks in order to permit passage of humanitarian relief consignments.

# Commentary


#### Rule 129

In principle, the Rules relating to the provision of humanitarian assistance apply to both international and non-international armed conflicts mutatis mutandis.

#### Commentary


Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

# Section XV: Cultural Property

# Rule 130

"Cultural property" means movable or immovable property, whether secular or religious and irrespective of origin or ownership, which is of great importance to the cultural heritage of every people. Examples include buildings and other monuments of historic, artistic or architectural significance; archaeological sites; artworks, antiquities, manuscripts, books, collections thereof, and collections of reproductions thereof; scientific collections; and archives. The term "cultural property" extends to buildings whose main and effective purpose is to preserve or exhibit movable cultural property and to refuges intended to shelter it, as well as to centres containing a large amount of movable or immovable cultural property.


items referred to in this paragraph may become military objectives, e.g. by virtue of use.

4. These Rules can also apply in occupied territory, see Article 5 of the 1954 Hague Convention.

# Rule 131

In an armed conflict, it is prohibited to make any use of cultural property or of its immediate surroundings for purposes likely to expose the property to destruction or damage unless this is imperatively required by military necessity.

	- a. Positioning a missile battery or anti-aircraft gun inside or alongside a historic structure, whether to take tactical advantage of the location or to shield the battery or gun from attack;
	- b. Incorporating a historic structure into a defensive line; and
	- c. Using a historic structure as a field headquarters or armoury.

(a) It is prohibited to make cultural property the object of attack unless it is a military objective and military necessity imperatively requires waiver of the obligation to refrain from any act of hostility directed against such property.

# Commentary

	- (b) Where cultural property becomes a military objective and military necessity imperatively requires waiver of the obligation to refrain from any act of hostility directed against it, any decision to attack the property should be taken only by an officer of appropriate seniority.

# Commentary

	- (c) Where cultural property becomes a military objective and military necessity imperatively requires waiver of the obligation to refrain from any act of hostility directed against it, a party to the conflict should give advance warning whenever circumstances permit.


3. Advance warning grants an opposing party an opportunity to take practical measures to minimize damage to the cultural property or to any movable cultural property housed in it, including by removing the latter to a place of safety or providing for adequate in situ protection (see Rule 134(a)).

# Rule 133

(a) It is prohibited to launch an attack that may be expected to cause collateral damage to cultural property that would be excessive in relation to the concrete and direct military advantage anticipated.

# Commentary

	- (b) Parties to the conflict must take feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event minimizing, collateral damage to cultural property.

# Commentary

1. This Rule expresses the LOAC duty to take feasible precautions, which is commented upon in general in paragraphs 1 and 6 the Commentary to Rule 11 and in paragraph 1 of the Commentary to Rule 14. The corresponding duty is expressed in Article 7(b) of the Second Protocol (of 1999) to the 1954 Hague Convention for States Parties and is applicable in both international and non-international armed conflicts for such States, in accordance with Articles 3 and 22(1) of the Second Protocol.

#### Rule 134

Parties to the conflict liable to be attacked should, to the maximum extent feasible:

#### Commentary

1. Subparagraph (a) is derived from Article 8(a) of the Second Protocol (of 1999) to the 1954 Hague Convention, as well as Article 58(a) of AP/I and customary LOAC. For parties to the conflict bound by the Second Protocol to the 1954 Hague Convention, the obligation in (a) is binding in both international and non-international armed conflict, by virtue of Articles 8(a) and 22(1) of the Second Protocol.

2. Subparagraph (b) is derived from Article 8(b) of the Second Protocol to the 1954 Hague Convention. For parties to the conflict bound by the Second Protocol to the 1954 Hague Convention, the obligation in (b) is binding in non-international armed conflict as well by virtue of Articles 8 (b) and 22(1) of the Second Protocol.

# (a) Remove movable cultural property from the vicinity of military objectives or provide for adequate in situ protection; and

# Commentary


# (b) Avoid locating military objectives near cultural property.

# Commentary


# Rule 135

(a) Personnel exclusively engaged on behalf of a party to the conflict in the protection of cultural property should not be made the object of attack so far as is consistent with the security interests of the opposing party.

## Commentary

1. Article 15 of the 1954 Hague Convention provides that, as far as is consistent with the security of the opposing party, personnel engaged in the protection of cultural property must, in the interest of such property, be respected. Crossreference to Article 17(2)(b) and (c) of the Convention indicates that the personnel in question are those engaged on behalf of a party to the conflict. One consequence of Article 15 is that such personnel must not be made the object of attack. This obligation is reflected in the present Rule.

	- (b) Such personnel lose their protection if and for such time as they are directly participating in hostilities.

#### Commentary

1. The notion of DPH is addressed in general in chapter "Section VII: Civilians Directly Participating in Hostilities".

# Rule 136

(a) Parties to the conflict may mark cultural property with a distinctive emblem.

#### Commentary

1. A distinctive emblem is created in Article 16(1) of the 1954 Hague Convention.

	- (b) The deliberate misuse of the distinctive emblem in an armed conflict is prohibited.

1. In accordance with both Article 17(3) of the 1954 Hague Convention and Article 38(1) of AP/I, and as restated in this Rule, the deliberate misuse during armed conflict of the distinctive emblem of cultural property is prohibited.

#### Rule 137

#### The foregoing rules are without prejudice to any 'special' or 'enhanced' protection in accordance with applicable treaties.

#### Commentary

1. This Rule preserves the prohibitions reflected in Article 8 of the 1954 Hague Convention ("special protection") and in Article 10 ff. of the Second Protocol (of 1999) to the 1954 Hague Convention ("enhanced protection").

Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

# Section XVI: Natural Environment

# Rule 138

When planning and conducting military operations during an armed conflict, due regard should be given to the natural environment.


Y. Dinstein, A. W. Dahl, Oslo Manual on Select Topics of the Law of Armed Conflict, https://doi.org/10.1007/978-3-030-39169-0\_16

<sup>1</sup> U.S Response to ICRC CIHL Study 521 ("France and the United States repeatedly have declared that Articles 35 (3) and 55 of AP/I, from which the Study derives the first sentence of rule 45, do not reflect customary international law. In their instrument of ratification of the 1980 CCW, both France and the United States asserted that the preambular paragraph in the CCW treaty, which refers to the substance of Articles 35 (3) and 55, applied only to states that have accepted those articles. 2 CIHL, see chapter "Section XI: Destruction of Property", fn. 1, Rule 44 (1st sentence).

# Rule 139 Rule 138 applies to the natural environment of:


#### Commentary


# Rule 140

In international armed conflict—subject to Rules 142 and 143—States should not use means and methods of warfare which are intended or may be expected to cause widespread, long-term and severe damage to the natural environment.


<sup>3</sup> U.S Response to ICRC CIHL Study, see fn. 1.

AP/I is that it fails to acknowledge that, after a determination of military necessity and application of the distinction principle, the use of weapons causing damage to the natural environment is prohibited when it is expected to be excessive in relation to the concrete and direct overall military advantage anticipated.<sup>4</sup>


# Rule 141

Under the ENMOD Convention, State Parties undertake not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party.

## Commentary

1. Under Articles 1 and 2 of the ENMOD Convention, States Parties undertake not to engage in "military or any other hostile use of environmental modification techniques [defined as any technique for changing—through the deliberate manipulation of natural processes—the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of Outer Space] having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party". This means that States will refrain from using the environment itself as a weapon when fighting another State Party to the ENMOD Convention.

<sup>4</sup> Ibid

<sup>5</sup> See chapter "Section I: Outer Space", fn. 19.

2. Rule 45 of the CIHL, which stipulates a prohibition of the use of the "destruction of the natural environment [...] as a weapon", is based, inter alia, on the ENMOD Convention. However, the CIHL itself describes the customary status of the ENMOD Convention as "unclear". 6

# Rule 142

Intentional destruction of any part of the natural environment qualifying as a civilian object is prohibited, unless required by imperative military necessity.

# Commentary


# Rule 143

# Although parts of the natural environment constitute civilian objects other parts may be regarded as military objectives by location, purpose or use (e.g., camouflage).

# Commentary

1. Many portions of the natural environment may be viewed presumptively as civilian objects. Still, there are two schools of thought in this matter. One school of thought regards the natural environment as worthy of protection per se. Another school of thought, anthropocentric in nature, focuses on those portions

<sup>6</sup> CIHL, see chapter "Section XI: Destruction of Property", fn. 1, vol. I, page 155.

of the natural environment that human beings are dependent on for their survival or health.

2. However extensively the inherently protected portions of the natural environment are viewed, it cannot be denied that—due to purpose, location or use—parts of the environment can qualify as military objectives. This is expressly recognized in Protocol III of the CCW Convention, which lays down in Article 2(4): "It is prohibited to make forests or other kinds of plant cover the object of attack by incendiary weapons except when such natural elements are used to cover, conceal or camouflage combatants or other military objectives, or are themselves military objectives".

# Rule 144

Feasible precautions should be taken to avoid, or in any event to minimize, incidental damage to parts of the natural environment constituting civilian objects.

# Commentary


# Rule 145

It is prohibited to launch an attack against a lawful target, which may be expected to cause incidental damage to those parts of the natural environment that constitute civilian objects, expected to be excessive in relation to the concrete and direct overall military advantage anticipated.

## Commentary

1. This Rule expresses the principle of proportionality, which is commented upon in general terms in paragraph 1 of the Commentary to Rule 11. Several States, including some not party to AP/I, have accepted the obligation to include expected environmental damage in the proportionality assessment of a proposed attack. In a similar vein, the ICJ had earlier observed that "States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives. Respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality." 7

2. However, the Rule applies only to parts of the natural environment constituting civilian objects. For example, where the natural environment is used for camouflage or as a shield for armed forces (see Rule 143), that part of the natural environment may be considered a military objective by use or location. With regard to destruction of parts of the natural environment as a consequence of movement of military forces, see chapter "Section XI: Destruction of Property" with Commentary.

Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

<sup>7</sup> ICJ Advisory Opinions in the Nuclear Weapons Case, see chapter "Outer Space", fn. 8, para 30.

Section XVII: International Criminal Law

# Rule 146

Those who decide upon, plan, order or execute military operations during an armed conflict bear individual criminal responsibility for war crimes they have committed.

	- a. That the conduct, at the time it took place, constituted a crime according to law, referred to as the principle of nullum crimen sine lege. 1
	- b. That punishment can only be imposed following a conviction in accordance with the principle of nulla poena sine lege.<sup>2</sup>
	- c. That they are not to be tried twice for the same conduct that formed the basis for the crime, referred to as the principle of ne bis in idem.<sup>3</sup>
	- d. That they acted with the mental element(s) required for the specific crime and that no situation existed to negate the element(s).4
	- e. That there are no reasons to exclude criminal responsibility (e.g., self-defence or mental disease).<sup>5</sup>

<sup>1</sup> Expressed in the Rome Statute, see chapter "Section XI: Destruction of Property", fn. 1, Article 22.

<sup>2</sup> Expressed in the Rome Statute, ibid, Article 23.

<sup>3</sup> Expressed in the Rome Statute, ibid, Article 20.

<sup>4</sup> Expressed in the Rome Statute, ibid, Articles 30 and 32.

<sup>5</sup> Expressed in the Rome Statute, ibid, Article 31.

<sup>©</sup> The Author(s) 2020

Y. Dinstein, A. W. Dahl, Oslo Manual on Select Topics of the Law of Armed Conflict, https://doi.org/10.1007/978-3-030-39169-0\_17


Military commanders bear individual criminal responsibility if they knew or, owing to the circumstances at the time, had reason to know that their subordinates were committing, were about to commit, or had committed any war crime, and failed to take necessary and reasonable measures to prevent their commission or to punish the perpetrators thereof.


<sup>6</sup> See Rome Statute, ibid, Article 25.

Statute of the ICTR, as well as Article 28 of the Rome Statute. Although this construct is embedded in customary international law, the Rome Statute articulation of command responsibility is binding only in the application of the Rome Statute itself.


#### Rule 148

The fact that a war crime has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, does not, as such, relieve that person of criminal responsibility.


<sup>7</sup> Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, Adopted by the International Law Commission of the United Nations (Nuremberg Principles) (1950), The Laws of Armed Conflicts, page 1265.

conduct was a part of, as well as military experience and what could reasonably have been expected from a soldier in a similar situation.

3. The phrase "as such" was added in order to emphasize that other circumstances may preclude criminal responsibility, as referred to in paragraph 1 of the Commentary to Rule 146.

# Rule 149

# A person's official position does not relieve that person of criminal responsibility for a war crime.

# Commentary

1. This Rule is based on Nuremberg Principle III, later repeated in Article 27 of the Rome Statute, as well as Article 7(2) of the Statute of the ICTY and Article 6 (2) of the Statute of the ICTR. "Official position" includes that of both Heads of State as well as other governmental officials.

# Rule 150

# No statutory limitation applies to certain war crimes, irrespective of the date of their commission.

# Commentary


# Rule 151

# Any person charged with a war crime has the right to be tried by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure.

# Commentary

1. This wording expresses customary law minimum fair trial guarantees and is based on the wording of Article 75 of AP/I. Minimum fair trial guarantees must be

<sup>8</sup> Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (1968), Laws of Armed Conflict, page 1267, Article 1. European Convention on the Non-Applicability of Statutory Limitations to Crimes Against Humanity and War Crimes (1974), Laws of Armed Conflicts, page 1281, Article 1.

enforced in any prosecution of any crime, including war crimes, crimes against humanity or genocide.

	- a. The right to be informed without delay, in an understandable language, of the particulars of the offence alleged against him/her.
	- b. The right not to be convicted by a tribunal or a court that does not satisfy the basic conditions mentioned in paragraph 1 of the Commentary to Rule 146.
	- c. The right to be presumed innocent until proved guilty according to law.
	- d. The right to be tried in his/her own presence with the necessary rights and means of defence.
	- e. The right not to be compelled to testify against himself/herself or to confess guilt.

# Rule 152

## Individual criminal responsibility for war crimes may lead to penal proceedings before competent international, domestic or hybrid courts.


<sup>9</sup> See for example AP/I, chapter "Section I: Outer Space", fn. 13, Article 75(3) and (4).

<sup>10</sup>U.S Statement to the 16th Sessions of the Assembly of States Parties to the Rome Statute.

International Court of Justice, in the Arrest Warrant case, recognized immunities from foreign jurisdictions for high-ranking officials (in that case, a Foreign Minister).<sup>11</sup> Jurisdictional immunity under international law is subject to waiver by the respective State.

7. The enforcement of international criminal law by international or foreign courts is subject to the fundamental principles of complementarity and subsidiarity, respectively. Accordingly, the State with the strongest jurisdictional links to a particular incident should be given the opportunity to conduct criminal proceedings. Only if it does not do so, or is unwilling or unable to do so, international or foreign proceeding would be considered a legitimate course of action.

Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

<sup>11</sup>Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), Judgment, I.C. J. Reports 2002, page 3, para 51–52 and 61.

# Section XVIII: Extraterritorial Operations Against Non-state Armed Groups

# Rule 153

The right of self-defence applies in response to an armed attack by non-State armed groups.

# Commentary

1. The exercise of the right of self-defence in response to an armed attack by non-State armed groups is demonstrated by the general practice and opinio juris of States in reaction to the events of September 11, 2001. This has been confirmed, inter alia, by Security Council resolutions (1368 and 1373) and by international organizations such as NATO.

#### Rule 154

A State may exercise its right of self-defence against non-State armed groups in a foreign State in response to an armed attack mounted by them from outside the victim State's territory, subject to the Charter of the United Nations.


4. An armed attack by non-State armed groups may be launched from foreign territory, where there is no connivance by the territorial State notwithstanding the fact that the armed group has its base of operations within that territory. If the victim State exercises its right of self-defence, it will likely do so within the territory of the State in which such base of operation is situated. Nevertheless, the exercise of self-defence will be directed against the non-state armed groups and not against the foreign State itself.

## Rule 155

Self-defence may be exercised in the circumstances referred to in Rule 154 without the consent of the incumbent territorial Government if the latter is unable or unwilling to take the action necessary to suppress armed attacks by a non-State armed group against the victim State.

# Commentary


# Rule 156

## The right of self-defence against non-State armed groups in the circumstances referred to in Rule 154 may be exercised either individually or collectively.


The extra-territorial exercise of the right of self-defence against non-State armed groups does not per se bring into existence an international armed conflict.

#### Commentary


Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://creativecommons.org/licenses/by/4.0/), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons licence and indicate if changes were made.

The images or other third party material in this chapter are included in the chapter's Creative Commons licence, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons licence and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.

# Appendix A: Group of Experts



# 12. Attorney William Lietzau

13. Professor Roger O'Keefe Professor of Public International Law University College London

#### 14. Professor Marco Roscini Professor of International Law University of Westminster

# 15. Brigadier General (ret), Jan Peter Spijk

Military Legal Services, Royal Netherlands Army (ret.) President, International Society for Military Law and the Law of War

# Appendix B: Members of the Drafting Committee


<sup>1</sup> Until March 2018

<sup>2</sup> From December 2017

<sup>©</sup> The Author(s) 2020 Y. Dinstein, A. W. Dahl, Oslo Manual on Select Topics of the Law of Armed Conflict, https://doi.org/10.1007/978-3-030-39169-0