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Human Dignity in Combat: The Duty to Spare Enemy Civilians

Published online by Cambridge University Press:  04 July 2014

Eyal Benvenisti
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Abstract

An army attacks a neighborhood where the enemy is hiding among civilians. To what extent is the army required to expose its combatants to life-threatening risks in order to spare enemy civilians? This Article seeks to interpret the pertinent standards and rules of international law from the perspective of the principle of human dignity. The human dignity principle informs the interpretation of the law on the conduct of hostilities and provides a built-in mechanism for improving armies' treatment of enemy civilians. It inspires additional remedial and institutional norms that could overcome armies' distrust of each other during the height of battle. The principle of human dignity recognizes a general duty to strive to reduce harm to enemy civilians as well as specific rules against using them as human shields, hostages, or objects for retaliation. This Article concludes that in general there is no requirement to risk combatants to reduce the risk to enemy civilians, although a number of the specific rules do entail the assumption of such risks.

Type
Research Article
Information
Israel Law Review , Volume 39 , Issue 2 , Summer 2006 , pp. 81 - 109
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2006

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Footnotes

*

Professor of Law, Tel Aviv University. I thank Ishai Beer, George W. Downs, Chaim Gans, Alon Harel, Georg Nolte, W. Michael Reisman, and two anonymous referees for their most helpful comments on earlier drafts. I thank Dan Belz and Noa Tavor for their excellent research assistance. Part of the research for this Article was funded by a grant from the Israel Science Foundation.

References

1 Klein, Claude, The Principle of Raison d'Etat, in Zamir Book on Law, Government and Society 671 (Dotan, Yoav & Bendor, Ariel eds., 2005)Google Scholar.

2 The International Court of Justice [hereinafter the ICJ] may have hinted at that doctrine in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. The ICJ declared that it could not “reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake.” Id. at para. 97.

3 “Civilians” is used here to refer to non-combatants who do not take direct part in hostilities: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977 [hereinafter Additional Protocol I] provides in Article 51(3): “Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities.” See also 1 Henckarts, Jean-Marie & Doswald-Beck, Louise, Customary International Humanitarian Law 19 (2005)CrossRefGoogle Scholar (“Rule no. 6: Civilians are protected against attack unless and for such time as they take direct part in hostilities.”) I do not discuss the difficult question as to what amounts to taking direct part (see Henckarts & Doswald-Beck, id. at 23-24).

4 Additional Protocol I, Article 51(5)(b).

5 In the words of the preamble of the 1868 St. Petersburg Declaration.

6 According to the ICJ, it is “the overriding consideration of humanity” which is “at the heart o f the principles and rules of law applicable in armed conflict (Legality of the Threat or Use of Nuclear Weapons, supra note 2, at para. 95).

7 See Yoram Dinstein The Conduct of Hostilities Under the Law of International Armed Conflict 13–14 (2004)Google Scholar (“[T]he coinage IHL is liable to create the false impression that all the rules that govern hostilities are—and have to be—truly humanitarian in nature, whereas in fact not a few of them reflect the countervailing constraints of military necessity.”)

8 See, e.g., the reference to reprisals in the judgment of the Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) in Prosecutor v. Kupresckic, 14 January 2000, available at http://www.un.org/icty/kupreskic/trialc2/judgement/ (last visited May 9, 2006) at para 518:

After the First World War, the application of the laws of war moved away from a reliance on reciprocity between belligerents, with the consequence that, in general, rules came to be increasingly applied by each belligerent despite their possible disregard by the enemy. The underpinning of this shift was that it became clear to States that norms of international humanitarian law were not intended to protect State interests; they were primarily designed to benefit individuals qua human beings. Unlike other international norms, such as those of commercial treaties which can legitimately be based on the protection of reciprocal interests of States, compliance with humanitarian rules could not be made dependent on a reciprocal or corresponding performance of these obligations by other States. This trend marks the translation into legal norms of the “categorical imperative” formulated by Kant in the field of morals: one ought to fulfil [sic] an obligation regardless of whether others comply with it or disregard it.

9 A question that raises also the aspect of jurisdiction of human rights treaty bodies. See Banković v. Belgium 12 Eur. Ct. H. R. 353 (2001) (The European Convention on Human Rights does not apply to the NATO forces during their attack in Serbia).

10 Also beyond the scope of this Article is the analysis of the same questions as they arise in domestic (“non-international”) armed conflicts, where all civilians are also citizens, and where two different sets of norms—human rights law and the international law on non-international armed conflicts—govern.

11 There is vast literature on this subject. See Case Concerning Armed Activities on the Territory of The Congo (Democratic Republic of The Congo v. Uganda) (decision of Dec. 19, 2005), at paras. 208-217, available at http://www.icj-cij.org/icjwww/idocket/ico/icojudgments/icojudgment_20051219.pdf (last visited May 25, 2006); Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) (July 9, 2004), at paras. 106-111, available at http://www.icj-cij.org/icjwww/idocket/imwp/imwp_advisory_opinion/imwp_advisory_opinion_20040709.htm (last visited May 25, 2006); Benvenisti, Eyal, The International Law of Occupation 187–189 (2004)Google Scholar; Buergenthal, Thomas, To Respect and to Ensure: State Obligations and Permissible Derogations, in The International Bill of Human Rights 72 (Henkin, Louis ed., 1981)Google Scholar; Benvenisti, Eyal, The Applicability of Human Rights Conventions to Israel and to the Occupied Territories, 26 Isr. L. Rev. 24 (1992)CrossRefGoogle Scholar; Meron, Theodor, Extraterritoriality of Human Rights Treaties, 89 Am. J. Int'l L. 78 (1995)CrossRefGoogle Scholar; Ben-Naphtali, Orna & Shany, Yuval, Living in Denial: The Application of Human Rights in the Occupied Territories, 37 Isr. L. Rev. 17 (2003)CrossRefGoogle Scholar.

12 The same question arises from the formula adopted by the International Court of Justice that views the laws of armed conflict as the lex specialis of human rights law (see Legality of the Threat or Use of Nuclear Weapons, supra note 2, paras. 24-25; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, id. at paras. 104-106). This formula suggests that the law on the conduct of hostilities is in fact an act of renvoi for the purpose of interpreting the meaning of the term “arbitrarily” in Article 6(1) of the 1966 International Covenant on Civil and Political Rights (“Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”) If this is a question of renvoi, the reference from the ICCPR to the laws of war cannot undermine the basic assumptions of human rights law, namely, the commitment to the universal principle of human dignity.

13 The German Basic Law, Article 1(1) (“Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.”) On its applicability of the human dignity principle to warfare situations see note 18 infra. See also the Israeli Basic Law: Human Dignity and Liberty. (Article 2: “There shall be no violation of the life, body, or dignity of any person as such;” Article 4: “All persons are entitled to protection of their life, body and dignity.”).

14 See, e.g., Isayeva v. Russia, Application no. 57950/00 Eur. Ct. of H.R. (2005) (the Russian army is constrained by the European Convention on Human Rights in its fighting against rebel forces in Chechnya).

15 Who are not constrained by the European Convention on Human Rights according to the Bankovic decision, supra note 9.

16 The Preamble of the Declaration begins as follows: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” The preamble of the 1966 Covenant on Civil and Political Rights adds following that declaration that “these rights derive from the inherent dignity of the human person.”

17 “Act in such a way that you treat humanity, whether in your own person or in the person of another, always at the same time as an end and never simply as a means:” Kant, Immanuel, Grounding for the Metaphysics of Morals (Ellington, James trans.) in Ethical Philosophy 36 (1993)Google Scholar.

18 See supra note 13. The recent expression of this notion is the 2006 German Constitutional Court Decision concerning the so-called Aviation Security Act which authorized the German armed forces to shoot down hijacked planes turned into weapons against human lives. The Court found this Act unconstitutional, inter-alia for infringing on the right of the hijacked passengers to human dignity. According to the Court, the state authorities, when acting under that law, would treat the passengers as mere objects for saving others (“behandelt sie als bloße Objekte seiner Rettungsaktion zum Schutze anderer.”) Bundesverfassungsgericht, Aviation Security Act, 1 BvR 357/05, 15 February, 2006, para. 124 available at http://www.bundesverfassungsgericht.de/entscheidungen/frames/rs20060215_1bvr035705 (last visited May 9, 2006).

19 For a discussion of Kant's theory of just war see Orend, Brian, Kant on International Law and Armed Conflict, 11 Can. J.L. & Juris. 329 (1998)CrossRefGoogle Scholar.

20 I do not pursue the path of assigning collective punishment for collective guilt. For that inquiry see Fletcher, George P. Romantics At War: Glory and Guilt in the Age of Terrorism (2002)Google Scholar; id., Collective Guilt and Collective Punishment, 5 Theoretical Inquiries in Law 163 (2004), online edition, available at http://www.bepress.com/til/default/vol5/issl/art6 (last visited May 9, 2006).

21 This principle related also to combatants was first emphasized by Jean-Jacques Rousseau, who said: “La guerre n'est donc point une relation d'homme à homme, mais une relation d'Etat à Etat, dans laquelle les particuliers ne sont ennemis qu'accidentellement, non point comme hommes ni même comme citoyens, mais comme soldats; non point comme membres de la patrie, mais comme ses défenseurs.” (Jean-Jacques Rousseau, Du Contrat Social, Book 1.4 (1762)). The derivative “Rousseau-Portalis Doctrine,” which stipulates that “war is directed against sovereigns and armies, not against subjects and civilians,” is deemed implicit in the Hague Regulations of 1899 and 1907, the first conventions on the laws of war: Lemkin, Raphael, Axis Rule in Occupied Europe: Laws of Occupation—Analysis of Government—Proposals for Redress 79 (1944)Google Scholar.

22 Additional Protocol I, Article 51(2) (“The civilian population as such, as well as individual civilians, shall not be the object of attack.”)

23 In the famous (though unrepeated) words of the 1868 St. Petersburg Declaration: “The only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy; […] for this purpose it is sufficient to disable the greatest possible number of men.” Note that the law also prohibits causing unnecessary suffering or superfluous injuries to enemy combatants.

24 See the sources cited in notes 11-12 supra. This principle reflects a philosophy that regards the concept of sovereignty as allocating the global burden of protecting individuals. As Max Huber wrote in the famous Island of Palmas (or Miangas), Arbitral Award (April 4, 1928, rep. in 22 Am. J. Int'l L. 867, 876 (1928)Google Scholar), the principle of territorial sovereignty “serves to divide between nations the space upon which human activities are employed, in order to assure them at all points the minimum of protection of which international law is the guardian.”

25 Unless we recognize a universal duty to protect all individuals. See in this context Walzer, who does not distinguish among different groups of civilians: “the structure of rights stands independently of political allegiance; it establishes obligations that are owed, so to speak, to humanity itself and to particular human beings and merely to one's fellow citizens.” ( Walzer, Michael, Just and Unjust Wars, 158 (1977)Google Scholar). My argument is that the structure of rights imposes obligations toward all civilians, but the scope of these obligations may vary.

26 See the sources cited in notes 11-12 supra, and in particular the ICJ decision in the Case Concerning Armed Activities on the Territory of The Congo, supra note 11, in which the court emphasizes the occupying power's duties “to protect,” “to prevent,” and “to ensure respect” to the rights of protected persons (paras. 208-211). “Protected persons” are defined by Article 4 of the IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949 [hereinafter the IV Geneva Convention].

27 On the question of reprisals, namely, whether targeting civilians is a legitimate reaction to law violations by the enemy see infra notes 84-88 and accompanying text.

28 This formulation of the duty (rather than a duty to protect enemy civilians) is based on the idea that the state and its agents have no duty to actively protect enemy civilians. This distinction facilitates the acceptance of Thomas Nagel's absolutist position. According to Nagel “what absolutism forbids is doing certain things to people, rather than bringing about certain results.” Nagel, Thomas, War and Massacre, in War and Moral Responsibility 3, 10 (Cohen, Marshall, Nagel, Thomas, & Scanlon, Thomas eds., 1974)Google Scholar.

29 Provided that using these weapons does not compromise the ability to win the battle; see the discussion in Section III infra.

30 Can this goal justify extensive losses to enemy civilians? The ICRC commentary to the Additional Protocols suggests that Additional Protocol I “does not provide any justification for attacks which cause extensive civilian losses and damages. Incidental losses and damages should never be extensive.” Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 para. 1580 (Sandoz, Y., Swiniarski, C., & Zimmerman, B. eds., 1987)Google Scholar. In its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons (supra note 2, at para. 97), the ICJ declared that is could not “reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defense, in which its very survival would be at stake.”

31 Thus, for example, Australia, Canada and New Zealand have stated that the term “military advantage” includes the security of the attacking forces: Henckarts & Doswald-Beck, supra note 3, at 50.

32 According to Kant, imposing risks on combatants is based on their voluntary submission motivated by their wish to secure themselves and their country from external attacks. See Orend, supra note 19, at 360.

33 Walzer, supra note 25, at 151 (“soldiers are supposed to accept (some) risks in order to save [enemy] civilian lives”). See also id. at 155.

34 The obligation to “ensure” public order and civil life is recognized in Article 43 of the 1907 Hague Regulations concerning the Laws and Customs of War on Land, annex to the Hague Convention (IV) respecting the Laws and Customs of War on Land, The Hague, 18 October 1907.

35 On these rules see supra notes 89-96 and accompanying text. The positive duties on the occupant are even more pronounced under the IV Geneva Convention, supra note 26. See Benvenisti, Occupation, supra note 11, at 104-106.

36 Cf. Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 13 June 2000, at para. 49, available at http://www.un.org/icty/pressreal/nato061300.htm (last visited May 9, 2006):

The questions which remain unresolved once one decides to apply the principle of proportionality include the following: a) What are the relative values to be assigned to the military advantage gained and the injury to non-combatants and or the damage to civilian objects? b) What do you include or exclude in totaling your sums? c) What is the standard of measurement in time or space? and d) To what extent is a military commander obligated to expose his own forces to danger in order to limit civilian casualties or damage to civilian objects?

The Report offers the following answer at para 50:

It may be necessary to resolve them on a case by case basis, and the answers may differ depending on the background and values of the decision maker. It is unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to noncombatants. Further, it is unlikely that military commanders with different doctrinal backgrounds and differing degrees of combat experience or national military histories would always agree in close cases. It is suggested that the determination of relative values must be that of the “reasonable military commander.”

37 Additional Protocol I, supra note 3, requires distinction between combatants and non-combatants (Article 48). This distinction requires that “[t]he civilian population as such, as well as individual civilians, shall not be the object of attack,” (Article 51(2)) and that “indiscriminate attacks are prohibited.” (Article 51(4)).

38 Id. at Article 51(5)(b).

39 Id. at Article 57(2)(b).

40 For a recent discussion of this question see Stephens, Dale & Lewis, Michael W., The Law of Armed Conflict—A Contemporary Critique, 6 Melb. J. Int'l L. 55 (2005)Google Scholar.

41 Other questions include the legal consequences of causing excessive harm and institutional questions such as the proper arbiter of the ad-hoc analysis: the military commander at the time of planning the attack, or a disengaged judge, and, if the latter, what information would be relevant: the information the commander had (or was reasonably expected to have) before the strike or in retrospect.

42 1899 Hague Convention (II) with Respect to the Laws and Customs of War on Land and its Annex: Regulation Concerning the Laws and Customs of War on Land, Preamble: “In view of the High Contracting Parties, these provisions, the wording of which has been inspired by the desire to diminish the evils of war so far as military necessities permit, are destined to serve as general rules of conduct for belligerents in their relations with each other and with populations.”

43 Grossman, David, On Killing: The Psychological Cost of Learning to Kill in War and Society (1996)Google Scholar; Holmes, Richard, Acts of War (1985)Google Scholar.

44 Bourke, Joanna, An Intimate History of Killing: Face-to-Face Killing in Twentieth-Century Warfare 61–62 (1999)Google Scholar.

45 Grossman, supra note 43, at 4, 9-15, 28-29. On these methods see the reports of Grossman, supra note 43, Holmes, supra note 43, Bourke, id.

46 Bar, Neta & Ben-Ari, Eyal, Israeli Snipers in the Al-Aqsa Intifada: Killing, Humanity and Lived Experience, 26(1) Third World Q. 133 (2005)CrossRefGoogle Scholar challenge this conventional wisdom, based on interviews with snipers in the Israeli army. They suggest that additional factors that motivate soldiers are “rules of legitimate violence, [and] the culturally specific ideology of violence at work in specific cases. This kind of ideology may ‘humanize’ enemies but still classify them as opponents against which violence may be legitimately used.” (id. at 133, see also 149-151.)

47 W. Hays Parks gives several examples involving the Viet Cong during the Vietnam war, and PLO forces during the Israeli invasion to Lebanon in 1982, launching rockets, hiding troops, or shielding anti aircraft missile sites in the center of villages, on the roofs of hospitals and other immune sites: Parks, W. Hays, Air War and the Law of War, 32 A.F. L. Rev. 1, 160, 165–166 (1990)Google Scholar.

48 Hays Parks, id. at 163.

49 This is made clear in Article 48 of Additional Protocol I, supra note 3, which states that “the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives….” Each side is expected to “avoid locating military objectives within or near densely populated areas” and to “take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations.” Additional Protocol I, supra note 3, Article 58 (b) and (c). Specifically, it is prohibited to use civilians as human shields “to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations.” According to Article 51(7) “[t]he presence or movements of the civilian population or individual civilians shall not be used to render certain points or areas immune from military operations, in particular in attempts to shield military objectives from attacks or to shield, favour or impede military operations. The Parties to the conflict shall not direct the movement of the civilian population or individual civilians in order to attempt to shield military objectives from attacks or to shield military operations.” The ICC Statute mentions the latter act as a war crime: See Article 8(2)(b) (xxiii), available at http://www.un.org/law/icc/statute/romefra.htm (last visited May 25, 2006).

50 Some armies explicitly acknowledge that the security of their attacking forces is a relevant factor in assessing the proportionality of the attack: see Stephens and Lewis, supra note 40, at 72-73.

51 Reisman, W. Michael, The Lessons of Qana, 22 Yale J. Int'l L. 381, 396 (1997)Google Scholar.

52 See Kennedy, David, The Dark Side of Virtue 275–276 (2005)Google Scholar.

53 An emphasis on discretion of the “reasonable military commander” is also evident in the Final Report of the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, supra note 36.

54 Declarations of the United Kingdom upon Ratification of the Additional Protocols (1998), available at http://www.icrc.org/Web/eng/siteeng0.nsf/iwpList166/A06D567EA584477CC1256B66005B94B8 (last visited May 9, 2006). “Military commanders and others responsible for planning, deciding upon, or executing attacks necessarily have to reach decisions on the basis of their assessment of the information from all sources which is reasonably available to them at the relevant time.”

55 Hays Parks, supra note 47, at 162: “under the customary law of war, casualties resulting from a defender's use of the civilian population as concealment or cover from attack of legitimate military objectives are not the responsibility of the attacker so long as he has exercised ordinary care.”

56 See the declaration of the United Kingdom, supra note 54: “(i) Re: Article 51 and Article 57: In the view of the United Kingdom, the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole and not only from isolated or particular parts of the attack.” See also Henckaerts & Doswald-Beck, supra note 3, at 49 (“Several States stated that the expression “military advantage” refers to the advantage anticipated from the military attack considered as a whole and not only from isolated or particular parts of that attack”). Compare this with the ICRC Commentary to the Additional Protocols, (supra note 40, at para. 1580) which asserts that:

[t]he idea has also been put forward that even if they are very high, civilian losses and damages may be justified if the military advantage at stake is of great importance. This idea is contrary to the fundamental rules of the Protocol; in particular it conflicts with Article 48 [of Additional Protocol I] and with paragraphs 1 and 2 of […] Article 51. The Protocol does not provide any justification for attacks which cause extensive civilian losses and damages. Incidental losses and damages should never be extensive.

57 Australia and New Zealand maintain that the attack is legitimate as long as there is a bona fide expectation that the attack would make a relevant and proportional contribution to the objective of the military attack involved see Henckaert & Doswald-Beck, supra note 3 at 50.

58 See the Australian Military Manual (1994): “Collateral damage or injury would be unlawful in any instance in which such injury or damage becomes so excessive as to clearly indicate willful intent or wanton disregard for the safety of the civilian population.” (cited in Doermann, Knut, Elements of War Crimes Under the Rome Statute of the International Criminal Court 172 (2002))Google Scholar.

59 Final Report, supra note 36, at paras. 62 & 70:

It is the opinion of the committee that the bridge was a legitimate military objective. The passenger train was not deliberately targeted. The person controlling the bombs, pilot or WSO, targeted the bridge and, over a very short period of time, failed to recognize the arrival of the train while the first bomb was in flight. The train was on the bridge when the bridge was targeted a second time and the bridge length has been estimated at 50 meters […]. It is the opinion of the committee that the information in relation to the attack with the first bomb does not provide a sufficient basis to initiate an investigation. The committee has divided views concerning the attack with the second bomb in relation to whether there was an element of recklessness in the conduct of the pilot or WSO. Despite this, the committee is in agreement that, based on the criteria for initiating an investigation (see para. 5 above), this incident should not be investigated….

While this incident is one where it appears the aircrews could have benefited from lower altitude scrutiny of the target at an early stage, the committee is of the opinion that neither the aircrew nor their commanders displayed the degree of recklessness in failing to take precautionary measures which would sustain criminal charges. The committee also notes that the attack was suspended as soon as the presence of civilians in the convoy was suspected.

60 Under the ICC Statute, supra note 49, Article 8(2)(b)(iv), it is a war crime to:

Intentionally launch an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated. (My emphases E.B.).

61 Hague Convention Respecting the Laws and Customs of War on Land, Convention IV (18 October 1907), Article 3: “A belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.” This principle is reiterated in Article 91 of the Additional Protocol. See Reisman, supra note 51 at 397; Gillard, Emanuela-Chiara Reparation for Violations of International Humanitarian Law, 85 I.R.R.C. 529 (2003)Google Scholar. The ICJ in its recent advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra note 11, at paras. 151-152, mentioned compensation as one remedy for the violations of jus in bello obligations.

62 According to the Commentary on the International Law Commission's Draft Articles on State Responsibility, there is no general rule of international law concerning the standard that triggers state responsibility:

[S]tandards, whether they involve some degree of fault, culpability, negligence or want of due diligence […] vary from one context to another for reasons which essentially relate to the object and purpose of the treaty provision or other rule giving rise to the primary obligation. Nor do the articles lay down any presumption in this regard as between the different possible standards. Establishing these is a matter for the interpretation and application of the primary rules engaged in the given case.

See Commentaries to the draft articles on Responsibility of States for internationally wrongful acts adopted by the International Law Commission at its fifty-third session (2001), Report of the International Law Commission on the work of its Fifty-third session, Official Records of the General Assembly, Fifty-Sixth session, Supplement No. 10 (A/56/10), chp.IV.E.2, at 70, available at http://untreaty.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf (last visited June 6, 2006).

63 See Gillard, supra note 61, at 535 et seq. On models of post-war reparations for individuals see Henckaert & Doswald-Beck, supra note 3, at 541-50.

64 The Varvarin Bridge decision, Oberlandesgericht Köln, Judgment from July 28, 2005, Az. 7 U 8/04, available at http://voelkerstrafrecht.org/Urteile/OLG_Koeln_Varvarin_28072005.pdf (last visited May 9, 2006). The suit demanded compensation from Germany for its involvement in the NATO attack on the bridge. The court ultimately denied responsibility, only after asserting that jus in bello violations could and should be compensated under the German tort law, which is informed by the constitutional principle of human dignity.

65 Michael Reisman, supra note 51, at 398, has argued that belligerents have a duty to compensate enemy civilians for damages “[w]hether or not [the party's injurious] actions were intentionally criminal or were marked by a chain of grievous errors.”

66 Additional Protocol I, supra note 3, Article 57(2)(a)(i) stipulates that “those who plan or decide upon an attack shall do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects … but are military objectives.”

67 Id. Article 57(2)(a)(ii):

[t]hose who plan or decide upon an attack shall … take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss of civilian life, injury to civilians and damage to civilian objects; [and] refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.

68 In the case of HCJ 4764/04 Physicians for Human Rights v. The Commander of the IDF Forces in the Gaza Strip [2004] IsrSC 58(5) 385, the Israeli Supreme Court concluded that:

[a]ccording to the humanitarian principles of international law, military activities require the following: First, that the rules of conduct be taught to, and that they be internalized by, all combat soldiers, from the Chief of General Staff down to new recruits. […]. Second, that procedures be drawn up that allow implementation of these rules, and which allow them to be put into practice during combat, (id. at para. 66).

Additional Protocol I, supra note 3, Article 83, requires parties to educate their soldiers and civilians on the laws of war “so that those instruments may become known to the armed forces and to the civilian population.”

69 During the Gulf War in 1991, the selection of targets during the coalition air campaign was constantly monitored and reviewed by officers of the Judge Advocate General Corps: see Lewis, Michael W., The Role of Aerial Bombardment In the 1991 Gulf War, 97 Am. J. Int'l L. 481 (2003)CrossRefGoogle Scholar.

70 In the case of Physicians for Human Rights (supra note 68, at para. 38), the Israeli Supreme Court required the IDF to prepare in advance for the needs of the Palestinian civilian population in the battle zone, based on the principle that “the rule is that a military commander that takes over an area by way of combat must provide for the nutritional needs of the local residents under his control.”

71 Subsequent acts would include, for example, inquiries in cases of civilian casualties. See in the context of the European Convention of Human Rights, the case of Mcshane v. United Kingdom, 35 Eur. Ct. H.R.25 (2002) where the duty to investigate is inferred from the state's duty to protect the right to life. See also the Isayeva case, supra note 14.

72 See Prosecutor v. Kupreskic, supra note 8, at para. 526 (emphasizing “the cumulative effect” of the attacks); Final Report of the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, supra note 36, at para. 52 (favoring “an overall assessment of the totality of civilian victims as against the goals of the military campaign”.)

73 Undefended areas may not be subjected to attack (see Article 25 of the Hague Regulations, supra note 34).

74 The besieged army was denied the choice of expelling the civilians. As the Lieber Code of 1863 clearly states, “When a commander of a besieged place expels the noncombatants, in order to lessen the number of those who consume his stock of provisions, it is lawful, though an extreme measure, to drive them back, so as to hasten on the surrender.” (Article 18 of Instructions for the Government of Armies of the United States in the Field (Lieber Code). 24 April 1863, available at http://www.icrc.Org/ihl.nsf/FULL/110?OpenDocument (last visited May 9, 2006)).

75 “The German High Command Trial,” 12 U.N. War Crimes Commission, Law Reports of Trials of War Criminals, Case no. 72 (1949).

76 “Starvation of civilians as a method of warfare is prohibited” (Additional Protocol I, supra note 3, Article 54(1)), but if the purpose of the siege is military and not to starve a civilian population, then the siege would be legitimate: Henckaerts & Doswald-Beck, supra note 3, at 188. Of course, the general standard of excessive harm to civilians remains relevant.

77 Henckaerts & Doswald-Beck, id., & 193-200. See also Dinstein, supra note 7 at 133-137.

78 See in particular the practice described by Henckaerts & Doswald-Beck, supra note 3, at 193-200. The effort to set up the “oil for food” program for Iraq during the 1990s was in fact required to ensure that the sanctions regime would not turn Iraqi civilians into hostages.

79 af Jochnick, Chris & Normand, Roger, The Legitimation of Violence: A Critical History of the Laws of War, 35 Harv. J. Int'l L. 49, 88–89 (1994)Google Scholar.

80 USA v. Ohlendorf et al. (1948) (The Einsatzgruppen case) (American Military Tribunal, Nuremberg) 4 U.N. War Crimes Commission, Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, 1, 467 (cited by Jochnick & Normand, id. at 92). Jochnick and Normand, mention that no defendant was prosecuted for “indiscriminate bombing” (id. at 91).

81 See Dinstein, supra note 7, at 116. The ICTY Trial Chamber convicted a person for, inter alia, “inflicting terror and mental suffering upon civilian population” (during the siege of Sarajevo): Prosecutor v. Galic decision of 5 December 2003, para. 133, available at http://www.un.org/icty/galic/trialc/judgement/gal-tjO31205e.pdf (last visited May 25, 2006). The Final Report of the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, supra note 36, at para. 55, viewed media components as illegitimate targets for attack if the media's effect is merely to foster civilian support for the war effort.

82 As the ICRC Commentary to Additional Protocol I mentions, it was the World War II experience which prompted the effort to define military objectives: supra note 30, at para. 2000.

83 Additional Protocol I, supra note 3, Article 52 (2) (“military objectives are limited to 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.”) According to the ICRC Commentary, “it is not legitimate to launch an attack which only offers potential or indeterminate advantages” (supra note 30, at para. 20-24).

84 The Trial Chamber of the ICTY, in the case of Prosecutor v. Kupreskic, supra note 8, at n.785, reproduces the assertions of France, the U.K. and the U.S. (citations omitted):

In his report to the United States Secretary of State, the U.S. Deputy Legal Adviser and Head of the U.S. Delegation to the Geneva Diplomatic Conference of 1974-77 stated that in his view the Geneva Conference had “gone unreasonably far in its prohibition of [reprisals]” and added: “It is unreasonable to think that massive and continuing attacks directed against a nation's civilian population could be absorbed without a response in kind. By denying the possibility of response and not offering any workable substitute, Art. 51 [of Additional Protocol I] is unrealistic and cannot be expected to withstand the test of future conflicts. On the other hand, it will not be easy for any country to reserve, explicitly, the right of reprisal against an enemy's civilian population, and we shall have to consider carefully whether such a reservation is indispensable for us.” Furthermore, it has been reported that the United States JCS (Joint Chiefs of Staff), faced with the possibility that other States would not accept individual monitoring mechanisms, expressed misgivings about the acceptance of the prohibition of reprisals against civilians: “If the United States cannot rely on neutral supervision to ensure compliance with humanitarian law, then the threat of unilateral retaliation retains its importance as a deterrent sanction to ensure at least a minimum level of humane behaviour by US adversaries.”)

France voted against the provision prohibiting reprisals, stating, inter alia, that it was “contrary to existing international law”. The U.K. declared, upon ratifying Additional Protocol I, as follows (concerning reprisals): (m) Re: Article 51-55: The obligations of Articles 51 and 55 are accepted on the basis that any adverse party against which the United Kingdom might be engaged will itself scrupulously observe those obligations. If an adverse party makes serious and deliberate attacks, in violation of Article 51 or Article 52 against the civilian population or civilians or against civilian objects, or, in violation of Articles 53, 54 and 55, on objects or items protected by those Articles, the United Kingdom will regard itself as entitled to take measures otherwise prohibited by the Articles in question to the extent that it considers such measures necessary for the sole purpose of compelling the adverse party to cease committing violations under those Articles, but only after formal warning to the adverse party requiring cessation of the violations has been disregarded and then only after a decision taken at the highest level of government. Any measures thus taken by the United Kingdom will not be disproportionate to the violations giving rise thereto and will not involve any action prohibited by the Geneva Conventions of 1949 nor will such measures be continued after the violations have ceased. The United Kingdom will notify the Protecting Powers of any such formal warning given to an adverse party, and if that warning has been disregarded, of any measures taken as a result.”

85 Prosecutor v. Kupreskic, supra note 8, see esp. paras. 511, 518, & 527.

86 Id. at para. 518.

87 Doctrinally, it is also suggested that norms protecting civilians have assumed a peremptory status of non-derogable “jus cogens”: id. at para. 520.

88 List et al (“The Hostages Trial”) 8 U.N. War Crimes Commission, Law Reports of Trials of War Criminals, Case No. 47 (1949) (the Tribunal recognized the principle of collective responsibility whereby, for instance, villagers were responsible for the acts of resistance fighters who found refuge in that village: “hostages may be taken in order to guarantee the peaceful conduct of the populations of occupied territories and, when certain conditions exist and the necessary preliminaries have been taken, they may, as a last resort, be shot. The taking of hostages is based fundamentally on a theory of collective responsibility.” at 61).

89 See the distinction made in Section II between the duty to respect and the duty to ensure.

90 Article 34 of the IV Geneva Convention, supra note 26: “The taking of hostages is prohibited.” (This Article appears in the section that relates to obligations concerning civilians in occupied territories as well as in the territories of the parties to the conflict.)

91 Common Article 3(b) of the 1949 Geneva Conventions.

92 ICC Statute, supra note 49, Article 8(2)(a)(viii).

93 Id. at Article 8(2)(b)(xxiii)

94 HCJ 3799/02 Adalah v. GOC Central Command [October 6, 2005] (not yet published). For an English translation of this case, see the Court website, available at http://elyonl.court.gov.il/eng/verdict/search_eng/verdict_by_case_rslt.asp?case_nbr_html=HCJ+3799%2F02 (last visited June 6, 2006).

95 Common Article 3(b) of the 1949 Geneva Conventions.

96 Additional Protocol I, supra note 3, Article 4 (“It is prohibited to order that there shall be no survivors”).

97 ICC Statute, supra note 49, Article 31.

98 See Fletcher, George P., Basic Concepts of Criminal Law ch. 8 (1998)Google Scholar; Fletcher, George P., Rethinking Criminal Law ch. 10 (1978)Google Scholar.

99 See the preamble of the 1907 Hague Convention (IV) respecting the Laws and Customs of War on Land (my emphasis E.B.).

100 Walzer, supra note 25, at 252-253. See also Walzer, Michael, Arguing About War 33–50 (2004)Google Scholar.

101 On similar considerations leading to distinguishing between rules and exceptions in criminal law see Dan-Cohen, Meir, Decision Rules and Conduct Rules: On Accoustic Separation in Criminal Law, 97 Harv. L. Rev. 625 (1984)CrossRefGoogle Scholar.

102 Walzer, Arguing About War, supra note 100; id.; Smilansky, Saul, Terrorism, Justification, and Illusion, 114 Ethics 790, 801–805 (2004)CrossRefGoogle Scholar.

103 See Dinstein, supra note 7, at 245-248 (concerning murder); Gaeta, Paola, May Necessity Be Available as A Defence for Torture in the Interrogation of Suspected Terrorists, 2 Int'l J. Crim. Justice 785 (2004) (concerning torture)CrossRefGoogle Scholar.

104 This is the assumption of the Israeli Supreme Court in the case of HCJ 5100/94 Public Committee Against Torture v. State of Israel [1999] IsrSC 53(4) 817; an English translation of this case, available at, http://elyonl.court.gov.il/files_eng/94/000/051/a09/94051000.a09.HTM (last visited May 25, 2006). See also Benvenisti, Eyal, The Role of National Courts in Preventing Torture of Suspected Terrorists, 8 Eur. J. Int'l L. 596, 611 (1997)CrossRefGoogle Scholar.