Aleppo in Syria. Mosul in Iraq. Marawi in the Philippines. All cities now unfortunately synonymous with the destruction of war, and its attendant miseries visited on the populations inhabiting them. A new ICRC report, based on analysis of conflicts in Syria, Iraq and Yemen, has found a casualty rate five times higher in cities compared to other conflicts. It is estimated that by 2050, more than 60% of the global population will reside in cities.
The urban landscape makes conflict more complex, and particular concerns relating to the application of international humanitarian law (IHL) in cities are examined here. Protecting civilians, and distinguishing them from combatants is fraught. The use of explosive weapons destroys infrastructure necessary for survival. Restrictions on food and basic provisions create conditions that make existence difficult, forcing populations to leave, if able. Unexploded ordinances and snipers hamper safe exit. The ensuing mass displacement adversely impacts areas receiving besieged populations, often with scarce means to accommodate them.
IHL in urban contexts
The fundamental rules of IHL regulating the conduct of hostilities are embodied in the Geneva Conventions and the Additional Protocols, as well as customary law. The central tenets – the principles of distinction, proportionality and precaution in attacks – regulate the conduct of hostilities for the protection of civilians in all contexts. A distinction is to be made between combatants and civilians, and between military objectives and civilian objects. Any military action must be proportionate to the intended aim.
The existence of an international armed conflict (IAC) or non-international armed conflict (NIAC) requires a complex case-by-case analysis. Increasingly there are concerns regarding the classification of situations, due to the invocation of terrorism and questions concerning the applicability of IHL. Here, the classification of conflict is not addressed, but only those facets of IHL pertaining to the protection of a city and its inhabitants are highlighted.
These basic principles apply in NIAC and IAC, with some differences in the elaboration of the legal provisions. These principles are also reflected in customary law, distinct from treaty law, and applicable to both types of conflict. However, it is the application of these principles to densely populated areas that is operationally complex.
Protection of civilians
Civilians are protected from attack under IHL. As long as an individual is not a member of the armed forces or armed group, she is considered a civilian. However, the distinction between civilian and combatant is eroded in case of “direct participation in hostilities” by the former (Art. 51(3), AP I, Art. 13(3) AP II and customary law Rule 6). The ICRC Interpretive Guidance on the notion of Direct Participation in Hostilities under International Humanitarian Law delineates three cumulative criteria for acts to amount to “direct participation”: first, there must be an adverse impact on military operations or activities; second, a direct causal link between the act and the harm caused; and third, the act must be designed to cause the threshold of harm. Preparatory acts and subsequent actions are considered “direct participation”. Protection ceases during such participation, and is reinstated upon cessation. However, it may still be difficult to distinguish between direct and indirect participation. In doubt, the individual must retain protection.
There are estimates of over 100,000 civilians trapped in western Mosul, and between 500-1000 in Marawi. Reports indicate civilians unable to flee and forced to remain as “human shields”. Hostage taking includes the use of human shields and is prohibited under IHL (the 4th Geneva Convention, Art. 4(2)(c) APII, and customary law Rule 97). Also applicable are provisions relating to impeding the conduct of operations by virtue of civilian movement, which is prohibited (Art. 51 (7), AP I). A distinct category however may be when sympathetic individuals volunteer to stay in neighborhoods to impede military operations, and the impact of a lack of coercion on classification of the situation.
There have been reports of starvation among civilians unable to leave Marawi. Tactics that impact “objects indispensible to the survival of the civilian population” (reflected in Art. 54 AP I, Art. 14 AP II and customary law Rules 53 & 54), resulting in starvation are prohibited. In addition, the prevention of humanitarian aid and restricting the movement of humanitarian personnel are prohibited under customary law (Rules 55 & 56).
Another core concern is the distinction of military objectives from civilian objects. This principle may be blurred with “dual use” objects, i.e. used for both civil and military purposes, such as bridges, electricity networks, communication systems and other infrastructure. In case of doubt, it should be presumed to be a civilian object, per Art. 52(3), AP I. Customary law Rules 10 & 16 reiterate the principle of distinction. This however becomes more problematic in the warfare in cities such as Mosul.
The use of explosive weapons with wide impact area effects within urban confines is not prohibited per se. However, the principles of distinction and proportionality become more difficult to adhere to. The “reverberating effects” of such weapons on the infrastructure of cities may cause greater damage and loss of life than their direct impact. It is therefore argued that the use of explosive weapons in urban contexts take into account the “reasonably foreseeable” effects. Weapons and munitions should be assessed for their ‘reverberating effects’. The determination of “foreseeability” in this regard is an evolving area of law and state practice. The ICRC has highlighted the lack of training in the use of weapons in urban areas.
Protection of cultural heritage
Urban spaces are a living embodiment of history and culture, containing libraries, historic monuments, cultural artefacts, museums etc. Much of this legacy is at risk of being lost in urban conflict. The destruction of Mosul and its iconic mosque is the latest such instance. The destruction of the Bamiyan Buddhas are a testament to the importance of protecting cultural heritage, wherever located.
The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, 1954, provides for the protection of cultural heritage, such as religious and secular monuments, works of art, archives, manuscripts, among others. This protection is also reflected in Art. 53 AP I and Art. 16 AP II. The first conviction at the International Criminal Court for the destruction of cultural property in Timbuktu was successfully concluded in 2016. However, there are growing concerns regarding the use and destruction of schools in conflict, including in Palestine, and Ukraine, which are not protected by the Hague Convention. Hence, the Draft “Lucens Guidelines” have been formulated to address this issue. While an important start, the guidelines are not binding.
The growing trend of conflict in urban areas necessitates revisiting the rules in place, and if needed, adapting them. What is unchangeable is the primacy of protection of the civilian population, and avoiding all encompassing destruction of the cities that they call home.