THE OBLIGATION OF A STATE UNDER INTERNATIONAL LAW TO PROTECT MEMBERS OF ITS OWN ARMED FORCES DURING ARMED CONFLICT OR OCCUPATION

Abstract

The article considers whether a state owes any obligation under international humanitarian law or under human rights law to its own soldiers killed or injured during an armed conflict or an occupation of territory. Whether a soldier's own state can be a cause (in conjunction with the acts of enemy forces) of his death during combat is explored through situations such as poor training, equipment, and leadership and of specific issues such as ‘friendly fire’ incidents. It marks out a distinction between causation and the responsibility of a state. Whilst there may be political, or even national law, pressures upon a government which is at fault to some degree in causing casualties amongst its own soldiers this article suggests that, in certain limited circumstances, a duty may crystallise under customary international humanitarian law or arise under human rights law on a state to prevent it being a cause of the death or wounding of its own soldiers. It concludes that soldiers are, perhaps, the last group involved in an armed conflict to be recognised as individuals who should be owed some obligation of protection, in this case, by their own state under international law.