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. Continue reading