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Humanitarian Intervention

Griffon

DND photo ISD01-102 by Sergeant Gerry Pilote

A CH-146 Griffon helicopter flown by 430 Tactical Helicopter Squadron from Valcartier, Quebec conducts a routine air patrol in support of Task Force Bosnia-Herzegovina on Roto 9 of Operation PALLADIUM, Canada’s contribution to the NATO Stabilization Force (SFOR).

The Responsibility To Protect: A Military Legal Comment

by Major-General Jerry S.T. Pitzul, Lieutenant-Colonel Kirby Abbott and Captain Christopher K. Penny

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The views expressed by the authors in this article are personal, and do not necessarily reflect the views of the Government of Canada, the Canadian Forces or the Office of the Judge Advocate General.

Confronted with crimes against humanity or genocide, what interest will tip the scale and lead to a decision to intervene militarily or not? Will the predominant concern be a Westphalian respect for the political and territorial sovereignty of the state within which these international crimes are unfolding, or will the defence of individual human rights be determinative? Canadian Forces (CF) personnel have, on many occasions, been in the geographic centre of this debate.

The decision to intervene or not is neither simple nor settled. Rather, it raises a complex set of moral, political, legal, and military operational issues. Both the Keynote Address of General Klaus Naumann at the 20th Annual Seminar of the Conference of Defence Associations Institute – reprinted in this volume of the Canadian Military Journal – and the Report of the International Commission on Intervention and State Sovereignty (ICISS)1 – of which General Naumann was a member – make important contributions to this debate.

The arguments in the ICISS Report, entitled The Responsibility to Protect, confront those who support the supremacy of Westphalian notions of state sovereignty over individual human rights – offering instead a new approach and framework to ensure that a responsibility to protect fundamental human rights is exercised, even absent express authorization from the United Nations Security Council. The ICISS Report, like General Naumann’s Address, is challenging, innovative and timely. If adopted and acted on by the world community, it would have a significant impact on how military forces are employed to address humanitarian catastrophes.

The Editor of the Canadian Military Journal has offered the opportunity to comment briefly, from a military legal perspective, on both The Responsibility To Protect and General Naumann’s Address. Our comments will consequently be of a general nature, non-exhaustive and confined to legal matters – leaving the moral, policy and operational aspects of these arguments to others. Our goal is simply to map out, in general terms, some, but not all, of the legal issues and controversies raised by General Naumann and the ICISS. New and innovative ideas will inevitably collide with the status quo. Consequently, it is important to situate these new ideas within the existing legal context.

The Responsibility To Protect and General Naumann’s Address are not meant to be solely legal arguments. Rather, they present a mix of morality, ethics, policy, and law. By mixing these disciplines, a powerful argument and framework is constructed that would probably not be possible if one were to remain solely within the silo of a single discipline. However, by constructing the argument in such a way, ambiguity is created and the reader is never sure whether a particular assertion, concept or argument is being made on legal, moral or policy grounds. For example, from a legal perspective, concepts such as ‘responsibility’, which have a legal meaning, are used ambiguously, thus opening the ICISS Report and General Naumann’s Address to the counterattack that the line of reasoning is flawed and not supportable.

The most obvious area where this ambiguity occurs is with respect to defining the legal foundation of the ICISS Report’s proposal for intervening militarily, in prescribed humanitarian circumstances. In particular, what is the legal basis that is being relied upon to intervene militarily in the absence of a Security Council Resolution?

Military Intervention to Address Serious Human Rights Violations: The Legal Debate

Potential military intervention into a state where serious human rights violations are occurring raises two legal questions. First, what is the legal basis to intervene? This issue is not new to The Responsibility To Protect, and has been raised frequently in the post-Kosovo debate surrounding the ‘right’ of humanitarian intervention. The second issue is unique to the ICISS Report – namely: What is the legal basis to assert not only the existence of a right but also a legal ‘responsibility’ to protect citizens of another state under prescribed circumstances?

Soldier

DND photo IS2003-2551a by Sergeant Frank Hudec

A Canadian soldier, whose face is protected against dust, mans a C-9 machine-gun on a LAV III in Kabul, Afghanistan.

A Legal ‘Right’ of Military Intervention?

First, we will turn to the traditional legal issues that advocates of The Responsibility To Protect must confront. The issues are similar to those concerning whether there currently exists an international legal right of humanitarian intervention absent Security Council authorization.2 There are clear differences separating the arguments ‘for’ and ‘against’ such a right.

Those who argue that no such right currently exists generally anchor their position on the Charter of the United Nations. In particular, they rely on Article 2(4),3 which creates a general prohibition on the use of force, subject only to the exceptions of self-defence (Article 51) and Security Council authorization (Chapter VII, specifically Article 42). In the absence of express authorization by the Security Council to use force, this school argues that a legal basis for humanitarian intervention does not exist. Only those interventions for humanitarian purposes that have been authorized by a Security Council Resolution, such as Somalia or East Timor,4 would be lawful. Consequently, members of this school would take the position that any suggestion by the ICISS or General Naumann to intervene militarily, absent Security Council authorization, would be unlawful under the current state of international law.

Importantly, however, for supporters of The Responsibility To Protect, most legal experts in this group acknowledge that international law is dynamic and subject to change. The UN Charter can be reinterpreted over time as a result of state practice, through the development of customary international law. For members of this group, an international right to use military force for humanitarian purposes has not yet crystallized, but they acknowledge that there is a possibility that the law can evolve, and may already be developing in this area.5 As a leading international lawyer noted before the United Kingdom House of Commons Foreign Affairs Committee following the Kosovo air campaign:

[t]he proponents of humanitarian intervention are distinctly in a minority. More significant, however, is the position in customary international law, which depends upon the practice of States based upon opinio juris, that is to say, a belief that the action is in accordance with international law. There can be no doubt that the United Nations Charter can be modified by the congruent practice of the Member States crystallizing as a new principle of customary law. But there is a burden of proof upon proponents of a change in the customary law. The central point is the absence of evidence of a change of view by a majority of States.6

The key argument for this group is that there is currently not sufficient evidence of state practice based upon opinio juris – ‘a belief that the action is in accordance with international law’ – to support the argument that a right to use military force to address serious violations of human rights exists, in the absence of Security Council authorization.

Other lawyers in this group, including the former President of the International Criminal Tribunal for the former Yugoslavia, have agreed that customary international law could provide a legal basis to intervene militarily for limited humanitarian purposes and, indeed, that international law is moving in this direction. For example, following an overview of historic state practice relating to international human rights, Judge Antonio Cassesse concluded that:

[b]ased on these nascent trends in the world community, I submit that, under certain strict conditions, resort to armed force may gradually become justified, even absent any authorization by the Security Council.7

He then proposed conditions that are strikingly similar to those advocated in The Responsibility To Protect.8

The evolution of international practice based on the UN Charter and customary international law is driven increasingly by a concern for protecting human rights over traditional Westphalian respect for the sovereignty of the state. It is the engine of human rights that has propelled the emergence of a doctrine of humanitarian intervention and a continual redefinition of both “the domestic jurisdiction” under Article 2(7)9 and a “threat to international peace and security” under Article 3910 of the UN Charter. Increasingly, serious violations of human rights within the territory of a state that is unable or unwilling to prevent them are being met by military and non-military forms of intervention.

In this vein, one legal scholar has noted:

[t]he law of the use of force, trying, on the one hand, to respond to new challenges and, on the other hand, being constrained by past experience, is in a state of flux. In legal terms, its transformation is conditioned, to a great extent, by the development of international law of human rights and by the elevation of the respect for elementary human rights to the category of fundamental principles of international law. These new developments in jus ad bellum are most intimately linked with the right of peoples to self-determination and norms governing rights of ethnic and religious minorities The problem is, however, that the principles of sovereign equality of states, non-use of force and non-intervention in domestic affairs, as they are enshrined in the UN Charter are the crown jewels of the Westphalian international system while the principle of respect for human rights undermines the very foundation of this system. However, evolving law of the use of force cannot ignore the development of international law of human rights.11

LAV III

DND photo IS2003-2498a by Sergeant Frank Hudec

Canadian soldiers in a LAV III drive past the ruins of the King’s Palace in Kabul, Afghanistan.

The author then quotes UN Secretary-General Kofi Annan, citing now-famous passages on protecting human rights made following the Kosovo air campaign. The Secretary-General had stated that “[t]he Charter is a living document” and “nothing in the Charter precludes a recognition that there are rights beyond borders”.12 Indeed, even before Kosovo, Annan had recognized that:

[e]merging slowly, but I believe surely is an international norm against the violent repression of minorities that will and must take precedence over concerns of State sovereignty. No government has the right to hide behind national sovereignty in order to violate the human rights or fundamental freedoms of its peoples.13

The Secretary-General’s statements are consistent with, and provide support for, the arguments contained in The Responsibility To Protect.

As noted, most legal critics of humanitarian intervention take the position that such a right can crystallize, but has not yet been established as a matter of customary international law. They anchor their legal argument with assertions that there is an ‘absence of evidence’ of state practice based upon opinio juris – the necessary ingredient for a customary international legal right to exist.

So, even with respect to those arguing that the ICISS call for military intervention cannot be supported under existing law, a key point to take from their position is that evidence of opinio juris can be created and a legal basis can emerge. Importantly, such evidence can be established within the UN, including by the UN General Assembly. Some significant historical examples are the 1950 “Uniting For Peace” Resolution,14 and the 1970 “Friendly Relations” Declaration.15 Both of these Resolutions were adopted by the General Assembly.

Along with the former General Assembly Resolution, innovative proposals, such as the UN Emergency Force in Egypt, championed by Canada’s Lester B. Pearson, allowed UN Member States to facilitate the development of a legal basis for peacekeeping. Highlighting these developments serves an important purpose in this commentary. It is a historic example of how Canadian leadership at the UN can create evidence of a new customary international norm that modifies UN practice and UN Charter interpretation. This is significant because it is within this tradition that Canada responded to Secretary-General Annan’s post-Kosovo call to states to “forge unity” around the question: “How should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that affect every precept of our common humanity?”

As noted in the Foreword of The Responsibility To Protect, it was before the UN General Assembly that the Government of Canada announced in September 2000 that it would establish the ICISS. It has now championed a corresponding General Assembly Resolution supporting the ICISS Report.16 The leadership of the Government of Canada, both within and outside the UN, is, from a legal perspective, significant in the process establishing evidence of an existing or emerging (depending on one’s perspective) customary norm.

Importantly, as noted, there is also a body of legal opinion asserting that an international legal right of humanitarian intervention already exists.17 For proponents of such a right, the UN Charter is a ‘living tree’, subject to changing interpretations as customary norms develop. In short, the UN Charter is not a static legal document, nor is it the sole source of international law. A leading proponent of the existence of a right of humanitarian intervention has observed that:

[i]t has been argued that, because the United Nations Charter contains a prohibition of the use of force and there is no express exception for humanitarian intervention, there can be no question of international law recognition (of) a right of humanitarian intervention. That is, however, to take too rigid a view of international law.

This approach ignores the fact that international law in general and the United Nations Charter in particular do not rest exclusively on the principles of non-intervention and respect to the sovereignty of the State. The values on which the international legal system rests also include respect for human rights “Upholding those rights is one of the purposes of the United Nations and of international law”. Moreover, international law is not confined to treaty texts. It includes customary international law. That law is not static but develops through a process of State practice, of actions and reaction to those actions. Since 1945 that process has seen a growing importance attached to the preservation of human rights. Where the threat to human rights has been of an extreme character, States have been prepared to assert a right of humanitarian intervention as a matter of last resort.18

It is at this point that those who advocate the existence of a customary international legal basis of humanitarian intervention cite a long history of state practice as evidence supporting the crystallization of a legal right. This includes various historic moments where military intervention into another sovereign state’s territory has occurred without prior Security Council authorization, in situations of humanitarian crisis. Commonly advanced examples include: the 1971 Indian intervention into Pakistan; Vietnam’s 1978 intervention into Pol Pot’s Cambodia; Tanzania’s invasion of Uganda, also in 1978; the Economic Community of West African States’ interventions into Liberia in 1990, and Sierra Leone in 1997; the imposition of ‘no-fly’ zones in northern and southern Iraq in 1991 and 1992, respectively; and, of course, Kosovo.19

By way of summary, the current debate on whether a right of humanitarian intervention exists focuses on the central point of whether the weight of evidence is sufficient to conclude that such a right has ‘crystallized’. Most lawyers in the debate, on either side, acknowledge that customary international law and interpretations of the UN Charter can evolve and support the emergence of a right of humanitarian intervention. A review of the current debate indicates that General Naumann’s comment that the proposal in the ICISS Report is a “dramatic departure from the interpretation of international law that prevails today throughout the world” may not be as ‘dramatic’ as he suggests.

Soldier with children

DND photo VK2002-0253-03d by Corporal John Clevett

Corporal Doug Boxall distributes a ‘Mostovi’ magazine to a local citizen in the city of Bihac. NATO uses the Mostovi magazine to help educate Bosnians about the peacekeeping mission and European cultural trends.

A Legal ‘Responsibility’ of Military Intervention?

Legal analysis of humanitarian intervention typically focuses on whether such a right currently exists under international law. If The Responsibility to Protect is to be interpreted as suggesting that there is an existing legal basis to intervene militarily, in prescribed humanitarian circumstances, then it must first confront the same legal challenges that those who advocate the existence of a right of humanitarian intervention must confront.

There is little suggestion in this prevailing debate that a legal responsibility to use military force exists in addition to such a right. Nonetheless, the ICISS and General Naumann assert that the international community has a ‘Responsibility to Protect’ civilian populations from serious human rights abuses when their states prove unwilling or unable to do so themselves.

As noted, The Responsibility To Protect appears to incorporate a mix of operational, moral, policy, and legal issues. Legally, the concept of responsibility may suggest, for some, an obligation or duty upon a state, as well as upon state agents, which may include military commanders. Failure to carry out a legal obligation or duty might therefore imply a corresponding legal liability for the state and its agents. What is the legal authority upon which such a responsibility rests?

Nowhere in the ICISS Report or in General Naumann’s Address is the concept of responsibility defined with any degree of precision. Perhaps this ambiguity is deliberate, and it has certainly generated needed debate. As a consequence, however, the undefined use of the term may leave the ICISS Report open to needless criticism. If the term is meant to be used in a moral or political sense, the goals of the ICISS Report could be met by stating so and relying upon legal reasoning supporting a right of military intervention.20

In contrast, allowing the concept of responsibility to remain ambiguous leaves open the potential that it implies state legal obligations and duties, and a corresponding potential for legal liability for failure to act. As a matter of international law, this is a controversial argument. Reliance on it may add unnecessary political and legal obstacles to the laudable process of crystallizing a legal right to intervene to remedy humanitarian catastrophes in states that are unwilling or unable to do so themselves.

Importantly, despite this ongoing debate, there is considerable general consensus between advocates and critics of a right of humanitarian intervention, including the ICISS, on some of the key preconditions for any use of military force. Speaking generally, there is recognition of a need for: a threshold requirement of imminent or ongoing serious human rights violations (i.e., crimes against humanity or genocide); the exhaustion or clear inadequacy of non-military options; the exhaustion of existing structures and processes, such as the Security Council, where feasible; and, the regulation of any use of force by international humanitarian law, in particular, by the principles of necessity and proportionality.21

Law of Armed Conflict Issues

The above portion of this commentary addressed legal issues relating to the decision of states to use military force (jus ad bellum), touching only on some of the most obvious issues in a general fashion. In the limited allotted space remaining, we would like to raise a number of issues relating to the body of law regulating the means and methods of employing military force once a state has made the decision to do so (jus in bello, the law of armed conflict, or international humanitarian law).

In most cases, the use of military force to intervene within a state unable or unwilling to protect its citizens from serious violations of human rights will be regulated by the law of armed conflict. This is a distinct area of international law that, while it overlaps with international human rights law, remains the specialized and determinative body of law governing the application of military force.22 Pursuant to the law of armed conflict, the means and methods of warfare are not unlimited.23 Only military objectives are to be engaged,24 and civilians and civilian objects are never to be the objects of attack.25 In addition, all use of military force must be proportional, such that, in any attack that may be expected to cause incidental civilian losses, these incidental effects cannot be excessive in relation to the concrete and direct military advantage anticipated.26

Within this context, there are some of General Naumann’s comments with which we would not agree. In particular, this includes his comments that “in war fighting interventions the neutralization of an opponent’s industrial capabilities is often the instrument to force surrender”, and that “military intervention operations” have to do “whatever it takes to meet the responsibility to protect”. The only lawful purpose for applying military force is to destroy or otherwise neutralize military objectives. Targeting a nation’s ‘industrial capabilities’ is lawful only to the extent that those capabilities are a valid military objective and the attack meets the requirements of proportionality. As noted, the application of military force may never be unlimited, and military commanders may never do “whatever it takes” to achieve their objectives. Rather, they must employ a disciplined and focused application of force that is capable of distinguishing civilians and civilian objects from military objectives.

Lastly, General Naumann comments “force protection should never be allowed to become the principal objective”. This reflects the ICISS Report, which states in part:

[o]ften, modalities for the proactive use of force have been determined more by military expediency than by any sense of responsibility to protect humanitarian interests. In Bosnia, for example, those advocating military interventions typically used its feasibility – meaning air strikes without casualties – as their prime argument, not moral or legal or operational obligations”. Force protection of the intervening force is important, but should never be allowed to become the principal objective. Where force protection becomes the prime concern, withdrawal – perhaps followed by a new and more robust initiative – may be the best cause.27

Leaving the obvious operational concerns to CF operational commanders to comment upon, it is important to stress that military force must meet the legal requirement of proportionality. If an attack meets the test of proportionality, there is no further legal requirement that the attacking military unit compromise its force protection to further reduce incidental civilian effects. Addressing the ICISS submission above, with specific respect to air operations, a pilot involved in an air strike that already meets the legal test of proportionality would not have to reduce altitude on his attack axis to further limit the attack’s incidental effects.

Searches

DND photo IS2003-2467a by Sergeant Frank Hudec

Private Cassidy Tait of the 2nd Battalion, The Royal Canadian Regiment (2 RCR), searches a locally employed civilian at the Canadian International Security Assistance Force camp in Kabul, Afghanistan. All persons and vehicles entering the camp are subject to search.

Conclusion

The Responsibility To Protect and General Naumann’s Address both raise new, innovative and challenging ideas that, if adopted, could significantly increase the potential for future military operations to address human rights catastrophes.

These proposals raise a number of legal issues, some of which have been generally outlined in this commentary. There is an existing or emerging (depending upon one’s perspective) legal basis supporting military intervention into the territory of sovereign states that are unable or unwilling to protect their citizens from serious human rights violations, even in the absence of express Security Council authorization. Whether this legal base is sufficiently developed to create a responsibility, in a legal rather than a political or moral sense, is far more controversial as a matter of international law.

Importantly, the framework proposed in the ICISS Report and by General Naumann, as well as the leadership taken by the Government of Canada on this issue, will further this international debate and may enhance significantly the legal arguments supporting future military intervention to protect populations subjected to atrocities.

CMJ Logo

Major-General Jerry S.T. Pitzul, Q.C., C.M.M., C.D., B.A.D., LL.B., M.B.A., is the Judge Advocate General of the Canadian Forces at National Defence Headquarters in Ottawa, Ontario.

Lieutenant-Colonel Kirby Abbott, C.D., B.A. (Hons), LL.B., M.A., LL.M., is the Director of Law/International in the Office of the Judge Advocate General.

Captain Christopher K. Penny, B.A. (Hons), LL.B., M.A., LL.M., is a reserve legal officer in the Directorate of Law/International, and Assistant Professor of International Law at the Norman Paterson School of International Affairs, Carleton University.

Notes

  1. International Commission on Intervention and State Sovereignty, The Responsibility to Protect (Ottawa: International Development Research Centre, 2001), [ICISS Report].
  2. For a general review of the various perspectives within the legal debate, useful references include: Kosovo: House of Commons Foreign Affairs Committee 4th Report, June 2000”, International and Comparative Law Quarterly (2000) Vol. 49, p. 876; “Editorial Comments: NATO’s Kosovo Intervention Kosovo and the Law of ‘Humanitarian Intervention’,” American Journal of International Law (1999), Vol. 93, p. 824; Christopher Greenwood, “International Law and the NATO Intervention in Kosovo”, International and Comparative Law Quarterly (2000), Vol. 49, p. 927; Simon Chesterman, Just War or Just Peace: Humanitarian Intervention and International Law, (Oxford: Oxford University Press, 2001).
  3. Article 2(4) of the UN Charter states:
    All members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.
  4. Relevant Security Council Resolutions are, for Somalia, 794 (3 December, 1992), and for East Timor, 1246 (11 June 1999), 1264 (15 September 1999) and 1272 (25 October 1999).
  5. For example, see Antonio Cassese, Follow-Up: Forcible Humanitarian Countermeasures and Opinio Necessitatis”, European Journal of International Law (1999), Vol. 10, p. 791.
  6. Ian Brownlie, “Kosovo Crisis Inquiry: Memorandum on the International Law Aspects”, The International and Comparative Law Quarterly (2000), Vol. 49, p. 894.
  7. Antonio Cassese, “Ex iniuria ius oritur: Are We Moving Towards International Legitimation of Forcible Humanitarian Countermeasures in the World Community?”, European Journal of International Law (2000), Vol. 10, p. 27.
  8. Ibid. These conditions include: the threshold requirement that serious human rights breaches amounting to crimes against humanity are occurring; the central authorities of the state are committing, or are unable to stop, these crimes; the inability of the Security Council to take remedial coercive action; the exhaustion of all peaceful avenues to address the situation; intervening action that is multinational in nature and occurs only after all peaceful means have been exhausted; and, the discontinuation of force once the humanitarian purpose is met. Compare this to Chapter 4 of the ICISS Report, Supra (see) Note 1.
  9. Article 2(7) provides that “[n]othing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state”, subject only to enforcement measures adopted by the Security Council pursuant to its Chapter VII authority.
  10. Article 39 reads, in part:
    The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall decide what measures shall be taken in accordance with Articles 41 and 42.
  11. Rein Mullerson, “The Use of Force Between Its Past and Future”, International Peacekeeping (1999), Vol. 5.
  12. UN Press Release SG/SM/7136 (20 September 1999).
  13. UN Press Release SG/SM/6949 (7 April 1999).
  14. UN General Assembly Resolution 377(A) (3 November 1950).
  15. Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations, UN General Assembly Resolution 2625 (XXV) (24 October 1970).
  16. Both former Prime Minister Jean Chrétien and current Prime Minister Paul Martin have advanced the ideas contained in the ICISS Report. See, for example, Prime Minister Chrétien’s speeches at the opening of the 58th Session of the UN General Assembly, 23 September 2003, and during his Roundtable Discussion at the Progressive Governance Summit, hosted by United Kingdom Prime Minister Tony Blair in London on 12 July 2002. More recently, Prime Minister Martin promoted the ICISS Report during the 3 February 2004 and also the 5 October 2004 Throne Speeches, in the “Address by the Prime Minister in Reply to the Speech from the Throne”. In addition, on 22 September 2004, at the opening of the 59th Session of the UN General Assembly, Prime Minister Martin stated:
    International law is moving in the right direction Thus, customary international law is evolving to provide a solid basis in the building of a normative framework for collective humanitarian intervention. To speed it along, member states should now adopt a General Assembly Resolution recognizing the evolution of sovereignty to encompass the international responsibility to people.
  17. Supra Note 2, in particular, Greenwood. See also the pleadings of Belgium before the International Court of Justice in Legality of Use of Force (Belgium v. Serbia and Montenegro), (Provisional Measures), 10 May 1999, CR 99/15.
  18. Greenwood, Ibid., p. 929.
  19. In many of these cases, implied and/or subsequent Security Council authorization may also provide a more traditional legal justification for intervention.
  20. By doing so, the ICISS and General Naumann could still avoid adopting “humanitarian intervention” terminology for the policy reasons outlined in the ICISS Report, supra Note 1.
  21. Compare, for example: the prerequisites or conditions for military intervention cited in Chapter 4 of the ICISS Report, supra Note 1; A. Cassese, supra Note 7; N. White, “The Legality of Bombing in the Name of Humanity”, Journal of Conflict, and Security Law, Vol. 5, p. 27; V. Lowe, “International Legal Issues Arising In the Kosovo Crisis”, International and Comparative Law Quarterly (2000), Vol. 49, p. 939. See also Christine Gray, International Law and the Use of Force, 2nd Edition (Oxford: Oxford University Press, 2004), p. 35.
  22. At times, the ICISS Report, supra Note 1, appears to blur the distinction between human rights law and the law of armed conflict – a trend that exists in other literature as well. While warranted in some circumstances, in particular when addressing gaps in the law of armed conflict, without careful limitation this blurring also risks eroding and compromising the integrity of the law of armed conflict and its key purpose of ensuring that those who are not participating in hostilities are protected from their adverse effects.
  23. 1977 Protocol Additional to the Geneva Conventions of 12 August, 1949 and Relating to the Protection of Victims of International Armed Conflicts, Article 35(1) [Additional Protocol I].
  24. Although military use may render an otherwise civilian object the subject of lawful attack. See Ibid., Article 48.
  25. Ibid., Articles 48 and 51(2).
  26. Ibid., Article 51(5).
  27. ICISS Report, supra Note 1, p. 63.