#25 Laws of War Brief (Part 2):

The Protections, Rights & Obligations of

 Civilian Non-Combatants & Military Combatants

under the LOAC

 

– Dr Regeena Kingsley

 

‘How the malice of the wicked was reinforced by the weakness of the virtuous.’[1]

– Winston S. Churchill

 

In a series of previous blogs I have presented case-studies of Multinational Operations (MNOs) in Rwanda, Bosnia and Kosovo, in which participating national forces – bound by government-imposed national caveat constraints – failed to use lethal force at the critical and necessary moments in order to fully uphold or pursue the primary security objectives of their security mission mandates (see blogs ‘#18 Caveats Endanger & Caveats Kill: National Caveats in UN Operations in Angola, Rwanda & Bosnia-Herzegovina’, ‘#20 Betrayal & Barbarism in Bosnia: The UNPROFOR Operation, National Caveats & Genocide in the Srebrenica UN “Protected Area”’, ‘#21 Srebrenica Aftermath: Serb Guilt & Dutch Liability for the Genocide in the UNPROFOR ‘Safe Area’ in Bosnia’, ‘#22 Recommended Viewing: The UN, National Caveats & Human Carnage in Rwanda’, and ‘#23 Caveat Chaos in Kosovo: Divided Allies & Fettered Forces in NATO’s KFOR Operation during the 2004 “Kosovo Riots”’).

The tragic results of government-imposed caveat constraints on national forces within these three international security missions, springing from a crippling unwillingness within government to allow their national military forces to use force when necessary, were the commission by hostile belligerents of war crimes against both civilians and civilian objects within the missions. Namely:

(1) The unimpeded killing of non-combatant civilians in all three international security operations;

(2) The commission of Genocide and Crimes against Civilian Humanity against thousands in Rwanda and Bosnia; and

(3) Unchecked ethnic cleansing in Kosovo involving the deliberate destruction or razing of homes in the cities as well as in the countryside (including the burning of entire villages and the forced displacement of their inhabitants), and targeted destruction of sites of great historical import or cultural significance to the local Serb civilian population, including multiple places of worship (one of which, the Monastery of the Holy Archangels, was a medieval and historically important UNESCO World Heritage site like Notre Dame in Paris, dating from the 14^th century).

These disasters in Rwanda, Bosnia and Kosovo, involving national military contingents engaging in both UN- and NATO-led multinational security operations over a period of ten years, are more than government, military and humanitarian failures however.  The negligence exhibited by many of these national military contingents during these international security campaigns, in neither acting to protect the lives of non-combatant civilians targeted by hostile combatant forces, nor acting in defence of civilian property and places of worship and cultural heritage targeted for destruction by hostile combatant forces, in fact constitute failures to uphold and enforce the very laws of war – now known collectively as the Law of Armed Conflict (LOAC).

[See in particular the LOAC protections provided in Common Article 3 of the Geneva Conventions, in addition to Articles 51, 52, 53 and 75 of Additional Protocol I governing ‘International’ inter-State conflict, and Articles 4, 13, 16 and 17 of Additional Protocol II governing ‘Non-International’ intra-State conflict.]

As outlined in ‘#24 Laws of War Brief (Part 1): The Law of Armed Conflict and Customary International Law’, the LOAC is comprised of international laws such as the Geneva Conventions, which, once ratified by individual Nation States, proscribe powerful and unequivocal obligations and duties on all individual members of the Nation State’s armed forces during any and every military conflict.  Some of these LOAC obligations have been so universally ratified and accepted as customary norms worldwide over the last century, that they have become extremely powerful and are now internationally regarded as binding on all military and non-military combatant forces, in all places, and at all times, during all the stages of conflict that exist on the scale between peace and war.  These binding legal customs are known as Customary International Law (CIL).

This blog comprises ‘Part 2’ of a brief on the laws of war and is a summary of what is, to the best of my understanding, the most important, mandatory and need-to-know obligations of the LOAC and CIL on all individual military personnel of national armed forces – of all ranks, all Services, and all nations around the world.

Soldiers at arms.[2]

 

‘Need-to-Know’ LOAC: Universal LOAC Rights & Obligations

Outlined below are the most crucial universal obligations under the LOAC and CIL, that all military personnel need to be keenly and continually aware of at all times and in all military situations, deployments and operations.

These concern the laws of war and international customs governing the following:

(1) Genocide & Crimes against Civilian Humanity;

(2) The rights and protections of non-combatants;

(3) The rights and protections of combatants;

(4) UN operations and the rights and protections of UN non-combatants and UN combatants;

(5) War crimes and individual criminal responsibility; and lastly,

(6) Military commanders and command responsibility for crimes against the LOAC. 

 

1

1 Genocide & Crimes Against Civilian Humanity

The LOAC states that all States and all individuals are obligated at all times – during peacetime, during war, and all the various stages in-between:

• To prevent, suppress and punish the crime of Genocide (the intent to destroy a part or whole of a national, ethnic, racial or religious civilian group); and
• To prevent, suppress and punish Crimes against Civilian Humanity (widespread and systematic attacks against a civilian population, including murder, extermination, enslavement, deportation, torture, rape, sexual slavery, enforced prostitution, enforced pregnancy, enforced sterilization, other sexual violence of comparable gravity, persecution, enforced disappearance and other inhumane acts intended to cause great suffering or serious injury to the civilian population).[3]

Indeed, the obligation to prevent and punish genocide wherever and whenever it occurs is considered so ‘super-strong’ and authoritative under LOAC, it has become universally-accepted as a bedrock principle and norm in CIL (jus cogens).[4]

20^th Century Genocide: Never Again…[107]

All orders from superior military officers either to commit or to allow Genocide and/or Crimes against Civilian Humanity are manifestly unlawful and must never be obeyed.  In fact, allusion to and reliance on ‘superior orders’ issued by military superiors as justification for committing or participating in such unlawful and immoral acts, will not protect or relieve any individual of personal criminal responsibility for these crimes.[5]

The principle of ‘military necessity’ can likewise never be used as a defence for committing or allowing breaches of these absolute, fixed, concrete rules of LOAC and CIL that prohibit the wilful killing of protected persons, genocide, and crimes against civilian humanity.[6]

Genocide in Rwanda: In April 1994, 2,000 Tutsi civilians seeking refuge at a UN school compound in Kigali, that was guarded by a unit of armed Belgian UNAMIR forces, were ultimately abandoned by these UN ‘protectors’ and then butchered by hostile and genocidal Hutu militia armed with machetes, who had for days been watching and waiting outside the school gates. Over the period of 100 days between April and July 1994, a total of 800,000 people were killed nationwide during the 1994 genocide under UNAMIR’s watch – equating to almost 10% of the entire Rwandan population at that time.[7]

One may quickly see by this brief overview that there were clear and specific obligations and rights under the LOAC that applied to Dutch UNPROFOR combatant forces, the orders issued by their National Commander Lieutenant Colonel (LTCOL) Thomas Karremans, and the 50,000 civilian war refugees in the Srebrenica UN Protected Area in Bosnia in 1995 (see blog ‘#20 Betrayal & Barbarism in Bosnia: The UNPROFOR Operation, National Caveats & Genocide in the Srebrenica UN “Protected Area”’ and ‘#21 Srebrenica Aftermath: Serb Guilt & Dutch Liability for the Genocide in the UNPROFOR ‘Safe Area’ in Bosnia’). 

In particular, it is evident that LTCOL Karremans and his Dutch battalion of UN forces had a strong obligation under the LOAC to prevent, to suppress, and even to punish, the crimes of genocide and crimes against civilian humanity committed by Bosnian Serb forces in Bosnia, and this obligation was significantly increased by the fact that they had the means, ability and manpower to do so as armed UN combatant forces deployed under Chapter VII authority.  Commands given by the National Commander to his DutchBat forces, including ROE caveats, that ordered Dutch armed forces not to prevent or suppress genocide or crimes against civilian humanity (in other words to allow it), and further not even to report it to either Dutch or UN superior commanders, did not respect or uphold LOAC and were therefore manifestly unlawful and illegal orders under the LOAC.  By definition, such orders against the laws of war constitute a ‘war crime’. 

In addition, Dutch UN military personnel had a basic duty to uphold the internationally-recognised LOAC Laws of War, and this duty took pre-eminence over the duty to obey superior orders by LTCOL Karremans and his subordinate officers in the Dutch chain of command. Following the horrific subsequent genocide in Srebrenica, which in nine days resulted in the deaths of 8,000 male civilian non-combatants of all ages – from young infants to the elderly – as well as the mass gang-rape of the female, civilian, non-combatants over the same period of time, these abiding and resilient facts would have held steadfastly true during any court martial trial in a domestic civilian or military court of law undertaken by the Netherlands, against any individual of the Dutch armed forces, who had rightly disobeyed Karremans’ unlawful orders, in order to uphold LOAC and defend the protected civilian population from the crimes of genocide and crimes against civilian humanity.

Failure to Protect Leads to Ethnic Cleansing: Caveated Dutch UN Protection Forces fail in their legal and moral responsibility to protect the 50,000 Bosnian war refugees they were deployed to robustly defend in the Srebrenica UN Protected Area.

Top photos: Bosnian Serb soldiers use heavy machine guns to execute thousands of unarmed Bosniak male refugees in “mopping up” genocide operations, burying their bodies in 32 mass graves around Srebrenica, such as this one discovered and excavated in the nearby village of Pilica in 1996.

Bottom photos: A woman begs for help from a UN soldier during the massacre of men and gang rape of young women in the UN ‘safe haven’ in Srebrenica, but due to government-imposed caveat constraints the soldier is helpless to assist her or her loved ones. After the Srebrenica savagery, weeping women grieve for their missing men, and for themselves, at another UN refugee camp at Tuzla airport.[8]

 

2

2 Non-Combatants

Under LOAC, all civilians in conflict theatres who do not take a direct part in hostilities are classed in law as non-combatants. 

All non-combatant civilians have ‘protected person’ status, entitling them to fundamental guarantees of humane treatment, and may not be deliberately targeted or attacked militarily under any circumstances.[9] [See the universally binding Common Article 3 of the Geneva Conventions I-IV relating to the protection of victims of inter-State International Armed Conflict (IAC), and Article 4 relating to the protection of victims of intra-State Non-International Armed Conflict (NIAC) for all State Signatories of the 1949 Geneva Conventions, and additionally, Articles 10-17 and 49-56 of Additional Protocol I relating to the protection of victims of inter-State International Armed Conflict (IAC), and Articles 4 and 13-18 of Additional Protocol II relating to the protection of victims of intra-State Non-International Armed Conflict (NIAC) for all State Signatories of the 1977 Additional Protocols to the Geneva Conventions.]

The LOAC protections given to civilians that guarantee humane treatment and forbid their being deliberately militarily targeted and attacked, is given not only to the civilian population within the power of a military armed force, e.g. in an occupied territory or State, but also to the Enemy civilian population of an opposing armed force or State(s) in a conflict generally.[10]  The term ‘civilian population’ includes all persons who are civilians (even if within that population there are some individuals who do not qualify as civilian). [11]

Sniper Alley: Unarmed and defenceless civilians seeking to buy food in the city run for their lives to escape deadly sniper fire from entrenched Bosnian Serb forces during the ‘Siege of Sarajevo’. As they flee they pass French UNPROFOR forces, who are stationed in Sarajevo to bring protection and peace, but are in fact powerless either to shield these civilians from the Serb sniper onslaught or to bring peace to Sarajevo.[12]

Under the LOAC it is expressly forbidden and illegal for military personnel or combatants within a conflict, either as fighting forces or occupying forces, to commit the following acts against civilians:

• Deliberately target and attack individual, non-combatant civilians;
• Deliberately target and attack the civilian population at large;
• Launch an indiscriminate attack affecting the civilian population or civilian objects knowing that such an attack will cause excessive loss of life, injury to civilians or damage to civilian objects;
• Launch an attack against dams, dykes or nuclear reactors knowing that the attack will cause disproportionate casualties amongst the civilian population;
• Make the object of attack clearly recognised historic civilian monuments, works of art or places of worship, which constitute the cultural or spiritual heritage of humankind, and to which special protection has been given under the LOAC, when such civilian objects are not located in the immediate vicinity of military objectives;

St. Elijah in Podujevo, one of 35 Serbian churches with adjacent cemeteries burnt down, damaged, desecrated or destroyed in Kosovo Province by violent Albanian mobs during the 2004 Kosovo Riots, while caveated battalions of NATO KFOR forces stood by inactively.[13]

• Use civilians as ‘human shields’ to render certain places or military forces immune from lawful military attack or military operations;
• Alter ammunition for use on civilians (e.g. use dum-dum bullets);
• Use chemical weapons against civilians or the civilian population at large;
• Use terror attacks or terrorism against civilians or the civilian population, e.g. as the Pakistan-enabled Taliban fighting force routinely did against the civilian population in Afghanistan from 2001-2021 (meaning that in addition to all terrorists being by definition criminals under the national domestic law of States, all terrorists operating within an armed conflict are additionally classed as war criminals internationally under the LOAC, as well as ‘unlawful combatants’ under international law, who may be detained but are not entitled to the rights, protections and privileges afforded to ‘lawful combatant’ PWs under the 1949 Geneva Conventions); or
• Wilfully kill or murder civilians;
• Wilfully cause great suffering or injury to the bodies or health of civilians;
• Subject civilians to indecency, sexual violence, rape, sexual slavery, forced prostitution, forced pregnancy, or forced sterilization;
• Subject civilians to degrading or humiliating treatment,
• Subject civilians to violence, intimidation, insults, abuse or public curiosity;
• Subject civilians to medical or biological experiments, including the removal of tissues or organs for transplant;
• Subject civilians to physical mutilation or torture;
• Subject civilians to reprisals, collective punishment, corporal punishment, or extra-judicial punishments;

Some of the family homes in Serbian towns and villages that were set on fire or destroyed by Albanian rioters, in a deliberate act of ‘reverse ethnic cleansing’, during the Kosovo Riots of 17-19 March 2004 within the NATO KFOR security operation.[14]

• Forcibly deport or transfer all or a part of the civilian population from an unoccupied territory into an occupied territory, to different locations within an occupied territory, or from an occupied territory to an unoccupied territory;
• Conduct ‘ethnic cleansing’ by forcibly expelling designated ethnic or religious groups within a civilian population from their own areas or territory;
• Starve the civilian population or any group of civilians through the use of blockade tactics to deprive civilians of water and food;
• Deny medical supplies or medical assistance to the civilian population through the use of blockade tactics to deny civilians medicine or medical aid; or
• Threaten to conduct any of the above crimes on civilians. [15]

Articles 27, 28 & 29 of Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, delineating the rights and treatment that must be given to ‘Protected Persons’ within ‘International’ inter-State conflicts under the LOAC, dating from 12 August 1949 and accepted internationally as a jus cogens norm or principle of CIL.[16]

Importantly, under LOAC, there is a clear distinction made between civilian deaths resulting from direct and deliberate attacks targeting the civilian population on the one hand, and on the other hand, accidental, incidental loss of civilian life which results as an unintended consequence of a lawful military attack against a legitimate military target (“collateral damage”).[17]

Motive and intent always matters, and always counts under LOAC.

If there is any doubt as to whether an individual is or is not taking a direct part in hostilities, military personnel should err on the side of caution, and continue to give the individual the legal protection of a non-combatant civilian until such time as combatant status or activity can be confirmed with appropriate supporting evidence.[18] [See Article 50 of Additional Protocol I.]

Article 4(1-2) of Additional Protocol II (APII) of 1977 listing the fundamental guarantees that must be given to all non-combatants within an intra-State, Non-International armed conflict.[19]

Just as military combatants must never target or attack non-combatant civilians, non-combatant civilians are not entitled by the LOAC to take a direct part in hostilities, by targeting or attacking combatants, or engaging in acts harmful to Enemy forces.  Should they do so, they forfeit their legal protections and ‘protected person’ status. Indeed, if non-combatants participate directly in hostilities, during the period of time of their direct participation they are no-longer non-combatants, but rather combatants.

Civilians who participate directly in hostilities, and thereby change their legal status from non-combatant to combatant, lose all LOAC legal protection against military attack given to civilian non-combatants, for as long as the persons are combatants taking a direct part in the hostilities.[20]

Non-combatant civilians (local, foreign/alien, refugees and stateless persons) who have been interned for imperative security reasons during an armed conflict are called internees. By contrast, detainees are actively hostile persons who have been captured, detained and deprived of personal liberty by an authority or force during an armed conflict who are:

(1) Captured members of militia and irregular forces in an IAC who do not qualify for ‘combatant’ status because they do not wear a uniform or recognisable emblem and do not carry their weapons openly during or preceding attacks;

(2) Captured members of dissident armed forces or other organised armed groups in a NIAC conflict; (3) Captured mercenaries;

(4) Captured civilians who have unlawfully taken part in hostilities;

(5) Captured persons suspected of being spies;

(6) Captured persons suspected of being saboteurs;

(7) Captured persons suspected of being assassins;

(8) Captured persons suspected of being common criminals, who cannot be dealt with by the ordinary criminal justice system; or

(9) Captured persons who pose a threat to the Force or to law and order, who cannot be dealt with by the ordinary criminal justice system. [21]

Women & Children

Women and children within the civilian population have additional special protection, over and above other rights and protections that civilians are entitled to generally under the LOAC.[22] [See Articles 3, 16, 24, 26,  27, 31, 33, 34, 40, 51 in Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War of August 12, 1949.]

A Rwandan woman, carrying her infant baby, collapses on the road in exhaustion in the neighbouring country of Zaire, after having fled to save her life – and that of her child – from certain death at the hands of the Hutu killers during the Rwandan Genocide of 1994.[23]

Civilian Women

All women have special ‘protected person’ status  under the LOAC – and this applies to female civilians, internees, detainees, combatants, PWs, and retained personnel as well as to women who are sick or have been wounded or shipwrecked, and to all female children.[24]

With regard to civilian women in particular, all female, civilian, non-combatants must be respected, protected and treated humanely at all times, and special care must always be taken of pregnant women and women with infant children.[25]

Rape is a serious breach of the LOAC and is considered a ‘war crime’.[26]

Indeed, under the LOAC all Parties to a conflict and their forces must protect women from:

(1) Rape;

(2) Sexual slavery;

(3) Forced prostitution;

 (4) Forced pregnancy;

(5) Forced sterilization; and

(6) Any other form of sexual violence.[27]

[See Common Article 3 to the Geneva Conventions, Additional Protocol I (Articles 76, 77 and 11), Additional Protocol II (Articles 4(2)(e), 4(2)(f) and 5(2)(e)), the Rome Statute (Articles 8(2)(b)(xxii) and 8(2)(e)(vi), and the Genocide Convention (Article II(d)).]

In addition, female PWs, retained personnel, internees and detainees must:

• Be treated with respect
• Be treated with due care for their sex,
• Be treated with equal care as men (meaning ‘no less favourably than men’);
• Be quartered separately from men;
• Be immediately supervised by women;
• Be searched by women;
• Be given adequate treatment and care if pregnant, or mothers with children, and have their cases addressed urgently if arrested, interned or detained; and
• Be protected from rape, forced prostitution, and other forms of indecent assault.[28]

[See Common Article 3 to the Geneva Conventions, Geneva Convention III (Articles 25, 29 and 97), Geneva Convention IV (Articles 76, 85, 91, 97 and 124), Additional Protocol I (Articles 75(5), 76 and 77), Additional Protocol II (Article 4(2)e and 5(2)(a)), and the Rome Statute (Articles 8(2)(b)(xxii) and 8(2)(e)(vi)).]

Civilian Children

Likewise, children – legally those under 18, aged from 0-17 years – within the civilian population must also be respected, protected and treated humanely at all times.[29]

Civilian children who take no direct part in hostilities must never be the object of military attack.[30]

All children are entitled to special protection under the LOAC and must:

• Be protected from rape, or any form of indecent assault;
• Be provided with the care they require;
• If arrested, detained or interned for any reason related to armed conflict, be held in quarters separate from adults, except where families are accommodated as a unit;
• If arrested, detained or interned for any reason related to armed conflict, be given the special treatment due to children, in particular additional food in proportion to their needs;
• If captured or taken as PW; remain entitled to the special protection due to them as children;
• Not be executed;
• Be allowed, wherever possible, to maintain contact with the families through regular correspondence and visits;
• Not be compelled to work by or for an occupying power;
• Not be used to take a direct part in hostilities
• Not be compulsorily recruited into the armed forces; and must
• Not be recruited into armed groups.[31]

Vulnerable Victims: On 13 July 1995, 23,000 war refugees at the Srebrenica UN ‘Safe Zone’  – mostly women, children and the elderly – were expelled by Bosnian Serb forces and compelled to walk 150 km on foot to the nearest UN refugee camp in Tuzla. Survivors of the subsequent “Death March” receive treatment for injuries inflicted on them by Serb military forces along the way, while others are traumatised from the horror of their ordeal and grieve for their lost loved ones.[32]

Exceptions: Female Combatants & Child Soldier Combatants

However, there are exceptions to these legal protections. As stated previously with regard to civilians generally, any female civilian who takes a direct part in hostilities loses all non-combatant civilian protections previously afforded to her under the LOAC, for as long as she engages or participates in the conflict as a combatant.  This means that while a female civilian participates in the conflict as a combatant, she may be lawfully militarily targeted, attacked and killed. 

A recent example of this are the ‘ISIS brides’ in Syria and Iraq.  Those female civilians who took up arms and thereby participated directly in hostilities during the recent conflict there, lost their legal protections as non-combatant civilians under the LOAC, and could hence be lawfully targeted and attacked militarily as combatants for the period of time in which they were taking a direct part in the hostilities by using weapons to target, attack and kill.

Indeed, it is important to understand that in the midst of an armed engagement there is no distinction made under the laws of war between active male and active female combatants – under the LOAC a combatant is a combatant, regardless of gender or even age.

Likewise, any child under the age of 18, who is taking a direct part in hostilities as part of the armed forces of a State or as part of an armed group, is considered a ‘child soldier’, and may lawfully be targeted and attacked as a child combatant in the conflict.[33] 

Captured child soldiers who, if adults, belong to a fighting group that would be considered lawful combatants under the LOAC and therefore qualify for Prisoner of War (PW) status, should be given all of the PW rights and privileges given to adult combatant PWs. [34]   

Captured child soldiers who, if adults, would not be considered lawful combatants, are unlawful combatants who can be detained and tried for their crimes as detainees.  However, although they do not qualify for PW status or rights, these unlawful child combatants still retain the ‘special protection’ given to all children under the LOAC (detailed above) and must also be guaranteed humane treatment at all times, as set out in Common Article 3 of the Geneva Conventions (also in CIL).[35]  

While these provisions have been made within the LOAC to accommodate this tragic reality of child combatants in armed conflicts today, it is clearly both immoral, and illegal under LOAC, for children to be recruited, trained, armed and used in a conflict as child soldiers and combatants.

In fact, according to the laws of war, all children are considered and classed as ‘prohibited combatants’ in armed conflicts.[36]

Article 4(3) of Additional Protocol II (APII) of 1977 listing the fundamental guarantees that must be given to all children within an intra-State, Non-International armed conflict.[37]

 

3

3 Combatants

Alongside these strong protections given to non-combatants in a conflict, it is simultaneously important to underscore that persons who are combatants within an armed conflict also have strong rights, protections and obligations under the LOAC.

All members of national armed forces (excluding medical and religious personnel) engaged in an armed conflict, whether at home within their own State or abroad while deployed on military operations in conflict theatres beyond their own State, are classed in law as combatants.  As such, they have specific rights and obligations under LOAC.  

To illustrate, provided they always act in accordance with the LOAC, military personnel:

• Are entitled to carry out attacks on the opposing Enemy forces;
• Bear no criminal responsibility or civil liability for killing or injuring members of the opposing Enemy force; and also
• Bear no criminal responsibility or civil liability for causing damage or destruction to Enemy property.[38]

Afghanistan and Iraq: Two conflict theatres in the Global War on Terrorism (GWOT).[39]

In addition, Enemy combatants – whether members of national armed forces, militia, volunteer corps, or other armed groups or units – may lawfully be attacked under the LOAC until and unless:

• They surrender (lawful combatants to be held as Prisoners of War (PWs) and unlawful combatants as detainees);
• Become ‘hors de combat’ (literally ‘outside of combat’ or ‘out of action’/’out of the conflict’ by the fact of having become ill or having been wounded, shipwrecked or captured); or
• Become protected by a truce or ceasefire agreement.[40]

Figure 12.5 – Anti-Government Enemy Insurgents: Photos of Taliban & ‘Neo-Taliban’ insurgents operating in Afghanistan between 2010-2014.[41]

When speaking of the rights of combatants, it is absolutely necessary to recognise the basic duality inherent in being a combatant within an armed conflict: the basic fact that while all combatants taking an active, direct part in armed hostilities within a conflict may indeed lawfully engage, attack and kill other active combatants in an armed conflict, provided they do so according to the laws of war, they may also likewise be legitimately engaged, attacked and killed as combatants themselves in the conflict (red-on-red engagement) until and unless they surrender, become ‘hors de combat’, or are protected by a truce or ceasefire agreement (as outlined above with regard to Enemy combatant forces too).  As Nicholson states:

‘The combatant’s privilege has been described by the Inter-American Commission on Human Rights as, “in essence a licence to kill or wound enemy combatants and destroy other enemy military objectives.” It therefore allows a combatant to use violence against people and property, providing that it is done in accordance with the laws of armed conflict. The flip side of the combatant’s privilege is that combatants themselves become lawful targets for enemy fighters who also hold combatant status. This is sometimes known as ‘combatant attack liability’. Dinstein explains that combatants: can be attacked (and killed) wherever they are, in and out of uniform: even when they are not on active duty. There is no prohibition either of opening fire on retreating troops (who have not surrendered) or of targeting individual combatants. Thus, for an enemy fighter who has combatant status to attack, injure or kill an opposing combatant is not illegal under IHL, provided that it occurs in accordance with the law. Combatants are liable to be attacked at any time until they surrender or are otherwise hors de combat’.[42]

The small ‘Code of Conduct’ booklet issued by the New Zealand Defence Force (NZDF) to all NZDF military personnel as a guide to the most important obligations, protections and rights under the LOAC that they must always observe when deployed on military operations on behalf of New Zealand (2007).

The Protections & Rights of Lawful vs. Unlawful Combatants

Once a combatant surrenders or becomes hors de combat (through sickness, wounds, shipwreck or capture), the degree of protection afforded to that person under the LOAC depends upon the legal status of the combatant.  For when it comes to combatants in armed conflict, the LOAC makes a very clear distinction between combatants who are lawful and those who are unlawful combatants in armed conflicts.

Lawful combatants, also referred to in the LOAC as ‘protected combatants’ or ‘privileged combatants’, include the following:

• Members of national armed forces (excluding medical and religious personnel);
• Members of militia and volunteer corps who: have a distinctive emblem recognisable at a distance; carry arms openly; are commanded by a person responsible for his or her subordinates; and conduct their operations in accordance with the LOAC;
• Members of the population of a territory which has not been occupied who, on the approach of an enemy force, spontaneously take up arms to resist the invading troops without having time to organise themselves into armies, militia or volunteer corps, if they respect the LOAC;
• Members of armed forces groups and units which are under command responsibility to a Party to the conflict for their own and their subordinates conduct, even if that Party is a government or authority not recognised by an opposing Party or Parties to the conflict; and
• Members of forces who, though unable to wear a distinctive emblem or to carry their arms openly due to the nature of operations, nevertheless do carry their arms openly during each military engagement and during such time as they are visible to the adversary while militarily deploying prior to launching an attack in which they participate. [43]

Under the laws of war all lawful combatants:

(1) Are entitled to carry out attacks on opposing forces;

(2) May lawfully be the subject of attack until and unless they become hors de combat through being wounded, sick, captured or shipwrecked;

(3) Bear no criminal responsibility or civil liability for killing or injuring members of the opposing force or for causing damage or destruction to property provided they have acted in accordance with the LOAC;

(4) Are not ‘protected persons’ until and unless they become protected by virtue of becoming hors de combat through sickness or being wounded, shipwrecked, or captured;

(5) If captured are entitled to Prisoner of War status, rights and protections; and

(6) May be tried before a fair and regular trial for breaches of LOAC and other international crimes. [44] 

According to Geneva Convention III, however, States are lawfully permitted to deny PW status to captured irregular force militia who show a general lack of regard for the principles of LOAC, and are therefore neither law-respecting or law-abiding. In cases such as these, captured personnel may instead be detained as unlawful combatant detainees and afforded far less rights, protections and privileges as lawful combatant PWs.[45] 

The second half of the small NZDF ‘Code of Conduct’ booklet issued to all NZDF military personnel as a guide to the most important obligations, protections and rights under the LOAC (2007).

By contrast, unlawful combatants, also referred to in the LOAC as ‘unprivileged combatants’, include the following:

• Terrorists;
• Civilian saboteurs;
• Bandits;
• Armed mutineers;
• Pirates;
• Military traitors operating to support or aid an opposing force; and
• Civilians who enter the conflict that are not part of an organised force, nor taking up arms in spontaneous resistance, but who are engaging in the conflict for their own purposes. [46]

The LOAC clearly emphasises that these unlawful combatants:

(1) Are not entitled to carry out attacks against opposing forces;

(2) Lose their ‘protected person’ status for such time as they take a direct part in hostilities;

(3) May lawfully be the subject of military attack;

(4) Bear individual criminal responsibility for killing or injuring members of the force against whom they commit hostile acts, and for causing damage or destruction to their property;

(5) If captured, interned or detained, are entitled to humane treatment but not to Prisoner of War status, rights or protections under the LOAC; and

(6) May be tried before a fair and regular trial for breaches of LOAC and other international crimes.[47] 

Al Qaeda terrorists (‘unlawful combatants’ under the LOAC) captured in Afghanistan.[48]

 

4

4 United Nations (UN) Operations & Personnel

With regard to UN operations and personnel, members of a UN military force stationed and operating in any given conflict theatre ‘must also comply with the applicable provisions and spirit of LOAC’ in all their interactions and dealings.[49] 

Likewise, and inversely, there are also clear LOAC rules that govern the actions that opposing forces may lawfully take against UN operations and UN military personnel.

UN Non-Combatants

Under the LOAC, UN forces and property have ‘special protection’ when the UN personnel concerned are non-combatants operating in humanitarian assistance, observer, or neutral peace-keeping missions, in which cases UN personnel are entitled to the same rights and obligations under the LOAC as other civilian non-combatants.[50]

In these scenarios with non-combatant UN troops, it is unlawful to attack UN personnel and property, or to kidnap or unlawfully detain UN personnel, and this applies at all times – regardless of whether or not UN personnel are displaying the UN flag, whether or not they are wearing blue berets or helmets, and whether or not UN property is marked with the lettering ‘UN’ and/or painted white.[51]

However, if so-called “neutral”, non-combatant UN peace-keeping personnel temporarily take up arms and use lethal force against opposing forces, in order to defend their own lives or those of others under their protection during a humanitarian or peacekeeping operation, then they are bound by the same obligations and rights as other combatants (discussed previously above), and have no inherent right to protections or protected status under the LOAC.[52]  As Derbyshire states:

‘The special protection applicable to UN personnel is lost for such time as such personnel take part in activities outside of their humanitarian or peacekeeping mission which are harmful to the opposing force.  The special protection does not apply to personnel engaged in UN enforcement actions under Chapter VII of the UN Charter, in which any of the personnel are engaged as combatants against organised armed forces to which LOAC applies’.[53]

Articles 13 &17 of Additional Protocol II (APII) of 1977 outlining the laws of war that protect the civilian population within an intra-State, Non-International armed conflict. [54]

UN Combatants

By contrast, UN forces that have been deployed under the authority of the Peace Enforcement chapter of the UN Charter – namely, Chapter VII – are considered combatants under the LOAC. 

In these cases, UN personnel deployed on Chapter VII UN operations are strictly speaking combatant “peace-enforcers” of a peace-enforcement mission, rather than non-combatant “peace-keepers” of a peace-keeping mission.

As combatants, UN military personnel are fully entitled and permitted to:

(1) Use lethal force to lawfully attack legitimate military targets and Enemy personnel in an offensive capacity;

(2) Use lethal force in defence of vulnerable areas or populations they are mandated by UN Security Council (UNSC) resolutions to defend or protect, in order to enforce the UNSC resolutions;

(3) Use lethal force in defence of vulnerable areas or populations under their own UN command and jurisdiction (e.g. in designated UN ‘safe areas’, such as those that existed in the UNPROFOR ‘safe area’ operation in Croatia and Bosnia from 4 June 1993 onwards, or in the Kigali school compound under UN command and protection in Rwanda in 1994),

(4) Use lethal force in UN military unit or individual self-defence;

(5) Use lethal force to protect or defend civilian UN personnel; and

(6) Use lethal force to protect or defend UN property and vehicles.[55]

Articles 14-16 of Additional Protocol II (APII) of 1977 outlining the laws of war that protect civilian objects within an intra-State, Non-International armed conflict. [56]

A Disturbing Modern Reality: Non-Combat-Capable UN Combatants

It is a deeply disturbing reality that, though the rights and obligations listed above are clear and incontrovertible under the LOAC, many UN combatants have not asserted their rights, nor upheld the law or the spirit of the LOAC, within many UN operations around the world. Indeed, it is no exaggeration to state that excessive timidity and restraint has been the general rule and trend among UN personnel operating on behalf of the UN in UN operations over many decades.

This timidity has resulted not only in well-known humanitarian disasters in conflict theatres such as Rwanda and Bosnia, but in an actual failure by the UN and its representative military personnel to uphold International Humanitarian Law, as enshrined in the LOAC as well as CIL, as it applies to civilians under UN command and care – not least Section 7 of the legal guidance given by the UN Secretariat to its own UN military personnel on International Humanitarian Law which states the following:

‘Section 7 – Treatment of civilians and persons hors de combat

7.1 Persons not, or no longer, taking part in military operations, including civilians, members of armed forces who have laid down their weapons and persons placed hors de combat by reason of sickness, wounds or detention, shall, in all circumstances, be treated humanely and without any adverse distinction based on race, sex, religious convictions or any other ground.  They shall be accorded full respect for their person, honour and religious and other convictions.

7.2 The following acts against any of the persons mentions in section 7.1 are prohibited at any time and in any place: violence to life or physical integrity; murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment; collective punishment; reprisals; the taking of hostages; rape; enforced prostitution; any form of sexual assault and humiliation and degrading treatment; enslavement; and pillage.

7.3 Women shall be especially protected against any attack, in particular against rape, enforced prostitution or any other form of indecent assault

7.4 Children shall be the object of special respect and shall be protected against any form of indecent assault’ [emphasis added][57]

Impotent Spectators of Savagery: Caveated Dutch UNPROFOR Protection Forces become powerless spectators of Serb barbarism, unlawfully directed against the Bosnian civilian population gathered at the UN Protected Area and ‘safe haven’ in Srebrenica, July 1995.[58]

While UN combatants participating in UN operations in Africa and in the Balkans during the early 1990s are the most infamous and notorious examples of this UN neglect of LOAC obligations and rights, disasters discussed at length in previous blogs, the fact is that this appalling trend has not ceased during the passing years to the present day in 2019. 

To illustrate, a 2014 UN report investigating the deportment of UN forces in eight UN operations then taking place around the globe found that many governments contributing peace-keepers to the mission considered the risk of the operation to their forces to be ‘higher than they would accept’, and consequently absolutely prohibited their forces from ever taking recourse to the use of force in the course of their activities.[59]  Other governments contributing troops to UN operations have made the use of force a ‘paper option’, constraining their troops with ‘operational and political constraints’ – that is, national caveats – that have been ‘at odds with their legal authority and mandate to act.’[60] 

In fact, this UN report found that even where national governments permitted their military forces to use force in the protection of civilians during their missions, these UN military personnel intervened in only 20 percent of the attacks on civilians (101 of 507 incidents), being predominantly either ‘unable or unwilling to prevent serious physical harm from being inflicted.’[61] When these rare cases of intervention were examined more deeply, furthermore, the study found that UN personnel were actually motivated to use force primarily in the interest of either their own self-defence or the protection of UN personnel and property, rather than their prime purpose of providing protection for the civilians themselves in the local vicinity of the UN operation. [62] 

In short, military personnel deployed to operate in UN security campaigns during 2014 proved so unwilling to use force, outside of self-defence, that they were in fact failing to do their job – neither protecting the civilian population, nor fulfilling their assigned missions, nor acting in the spirit of the UN operation’s security mandate (for an examination of this modern reticence to use force in contemporary security operations and pronounced habit of governments to impose severely-restrictive caveat constraints on deployed national forces today see blog “#14 An Alarming New Norm: National Caveat Constraints in Multinational Operations”).

One is reminded of Winston Churchill’s insightful and potent statements, with regard to the years preceding the outbreak of the Second World War – ‘how the malice of the wicked was reinforced by the weakness of the virtuous’ and:

‘How the counsels of prudence and restraints may become the prime agents of mortal danger; how the middle course adopted from desires for safety and a quiet life may be found to lead direct to the bull’s-eye of disaster.’[63]

Or as he stated with regard to the verbally articulate but practically inactive, and therefore impotent and ill-fated, League of Nations during the inter-war years: ‘The moral authority of the League was shown to be devoid of any physical support at a time when its activity and strength were most needed’ (see more Churchill quotes in endnote).[64]

Words & Actions: UN “Strong Verbal Warnings” from collective political officials in New York vs. Actively lethal combatant killings of civilian men, women and children in campaigns of Genocide, Crimes Against Civilian Humanity, and Acts of Aggression around the world today, that are ‘manifestly unlawful’ under the LOAC. Will the combat-robust and morally-astute nations of the world please stand up? (See UN Charter, Chapter VII, Articles 41-42, 43 & 45)  [108]

‘An Increased Willingness to Fight’: The UN Calls for Change

More recently, another UN report released in January 2018, and prepared on request of the UN Secretary-General Antonio Guterres, revealed that between the years 2011-2017 there was a pronounced ‘unwillingness to use force’ among UN forces on UN operations.[65]

In July 2016, for instance, the UN Mission in South Sudan (UNMISS) came under fire for showing a ‘chaotic and ineffective’ response to armed clashes between government and rebel forces in the capital, Juba. [66]  UN soldiers failed dismally to protect civilians during the engagements, and took no action at all as local women and girls were raped at nearby UN compounds and foreign aid workers were likewise sexually violated at their residences.[67]  According to an internal investigation, the UN peacekeeping mission in South Sudan had failed to achieve its own mandate during the armed hostilities – ‘to protect civilians under threat of physical violence…with specific protection for women and children.’ [68] To make matters worse, in February 2017 UN troops again failed to protect a ‘Protection of Civilians’ compound for internally displaced people in the South Sudanese town of Malakal from an attack by armed gunmen.  Thirty refugees were killed during the attack, and a further 120 wounded there. [69]

Complaints have also been made with regard to UN soldiers operating within UN missions in the Central African Republic (MINUSCA in the CAR) and the Democratic Republic of the Congo (MONUSCO in the DRC).  With regard to the former, UN troops have been accused of inaction when an armed attack took place against civilians in the north of the country in September 2016.[70]  More than 75 people, including non-combatant civilians, were killed during the attack.[71] A Pakistani UN contingent operating there has also been accused by the national government of ‘colluding’ with armed militia groups instead of ‘combating’ them.[72]  The UN’s poor combat performance, combined with a sexual abuse scandal involving 41 MINUSCA soldiers exploiting local women and minors within the country, has resulted in anti-UN protests taking place in the Capital Bangui (during which four additional people were killed). [73]  Violent anti-UN demonstrations and protests have likewise taken place in the DRC, where UN troops have proved either unwilling or unable to prevent armed militias from committing a rash of massacres in the eastern region of Kivu (especially in Beni region).[74] 

“WE NEED PROTECTION HERE!”– Civilian survivors of an armed attack on a UN camp for internally displaced people in Malakal, South Sudan, protest the lack of robust UN protection provided to them by UN troops guarding the camp. [75]

Events like these have led one former UN commander to state that:

‘There needs to be more effort placed on ensuring urgency in political processes. Otherwise, local armed groups will begin to threaten the rule of law when they discover that the UN troops only bark without biting.’[76]

Gustavo de Carvalho from the Institute for Security Studies has argued that the UN needs to, firstly, implement a ‘transparent standard’ which holds UN missions and peacekeepers from Troop Contributing Nations (TCNs) accountable for their conduct during UN operations, and secondly, start to ‘vet’ countries and their troops to make sure that national contingents are actually suitable in reality to the nature and tasks of the UN missions, so that TCNs ‘are not just using UN peacekeeping to boost their foreign policy and earn their troops large bonuses.’ [77]  While ‘putting boots on the ground is the only way to staunch the wounds of conflict,’ de Carvalho argues, peacekeeping ‘has to be better thought, better planned, better implemented and made more fit for purpose.’[78]

Indeed, in the 2018 UN report, UN officials told UN peacekeepers that it was time ‘to fight back’, stating:

‘In the future, peacekeepers should be better prepared to fight back when threatened or initiate the use of force themselves.  Unfortunately, hostile forces do not understand a language other than force. To deter and repel attacks and to defeat attackers, the United Nations needs to be strong and not fear to use force when necessary.’ [79]

This admonition applied equally to personnel participating in traditional UN peacekeeping operations, where according to the report ‘the blue helmet and the United Nations flag no longer offer ‘natural’ protection’ for non-combatant UN forces, as to those engaged in Chapter VII Peace Enforcement operations such as the offensive or counter-terrorist operations against hostile armed groups currently taking place in the Congo and Mali. [80]

Some of the 13,000 UN soldiers deployed to the MINUSMA multinational security operation in Mali since 2013 to combat and counter an Al Qaeda-linked Islamist insurgency there.[81]

According to the report, the pervasive unwillingness among UN military contingents to use lethal force, combined with the increasing number of Chapter VII operations due to the present security environment, has resulted in ‘spikes of violence’ directed against UN troops since 2011 and a resultant ‘extended surge’ in deaths among UN personnel not seen since the 1960s with missions in the Suez and the Congo, and the 1990s in Rwanda, Somalia, Cambodia and the Balkans.[82]  Indeed, a total of 56 UN soldiers were killed in 2017 alone – the highest number of UN deaths through violence since 1994.[83]  According to Brazilian Lieutenant General Alberto dos Santos Cruz, the leading investigator and author of the report with experience commanding UN forces in the Congo and Haiti, this increase is not simply a ‘spike’ in UN numbers, but rather  ‘a rise to a continuing plateau’ marking a ‘dangerous new reality’ for UN personnel participating in UN operations. [84]

Recognising the need for UN forces to rise to the occasion in confronting this new dangerous reality, the UN report chastised countries contributing forces to UN operations whose forces were not performing adequately with regard to their use of legitimate and lawful lethal force when necessary, stating:

‘They must perform. The United Nations should not accept caveats [restrictions and bans on the use of force within the Rules of Engagement of national military contingents], because they weaken integration and mutual protection within missions.’ [85]

Calling for better UN leadership, better pre-deployment training, better equipment in the field and – most importantly of all – ‘an increased willingness to fight’ among UN contingents and personnel – the report boldly declared, as it did in its own title, that quite simply: ‘We need to change the way that we do business.’ [86] 

UN troops deployed to UN security operations in conflict zones have a responsibility to act and react robustly against hostile threats and actions from armed groups, by using lethal force to protect civilians in their care and under their protection, both at their own UN civilian camps/compounds and in regions under UN command in operational theatres.[87]

 

5

5 War Crimes & Individual Criminal Responsibility for Breaches of the LOAC

A crime against the LOAC, through non-adherence to the laws governing the rules, means, methods, or protection of persons and objects within a conflict, is considered a ‘war crime’. 

Internationally-Recognised War Crimes

The following acts are generally accepted worldwide as war crimes:

• Wilful killing, torture or inhuman treatment of protected persons;
• Wilfully causing great suffering or serious injury to body or health of protected persons;
• Making a person the object of attack knowing that he/she is hors de combat, through capture, wounds, sickness or shipwreck;
• Compelling a Prisoner of War (PW) to serve in the hostile forces, or depriving a PW to the right to a fair trial;
• Delaying unjustifiably the repatriation of PWs or detainees;
• Practicing apartheid segregation, and/or other inhuman and degrading practices involving outrages upon the personal dignity of individuals, based on racial discrimination;
• Making an undefended locality or demilitarised zone the object of attack;
• Making treacherous or perfidious use of the distinctive emblem of the Red Cross or Red Crescent or other protective signs recognised by the Geneva Conventions;
• Making the civilian population or individual civilians the object of attack;
• Launching an indiscriminate attack affecting the civilian population or civilian objects knowing that such an attack will cause excessive loss of life, injury to civilians or damage to civilian objects;
• Launching an attack against dams, dykes or nuclear reactors knowing that the attack will cause disproportionate casualties amongst the civilian population;
• Making the object of attack clearly recognised historic monuments, works of art or places of worship, which constitute the cultural or spiritual heritage of humankind, and to which special protection has been given, when such objects are not located in the immediate vicinity of military objectives. [88]

Just as every member of the armed forces is legally liable for any breaches of LOAC, every Service member also has a responsibility to prevent and report any breaches of LOAC to their superiors.[89]

It is the responsibility of all to prevent war crimes, whenever and wherever they occur, or are about to occur, and to report all violations.[90]

Individual Criminal Responsibility

Failure by any person to respect, obey and enforce the LOAC – in all circumstances – means that person may be classed and prosecuted as a ‘war criminal’, in a domestic or international court of law. As Major (MAJ) Jane Derbyshire states:

‘Disobedience of LOAC renders you liable to punishment as a war criminal.’[91]

A person has individual criminal responsibility if he or she:

• Plans, instigates, orders, or commits a breach of LOAC; or
• Aids and abets the planning, preparation or execution of the LOAC breach.[92]

Because there is no statute of limitations on crimes against LOAC, individuals can be tried for breaches of LOAC throughout their lifetimes, no matter how many years or decades have passed since the breach or breaches occurred.[93]

Two UN soldiers deployed to the UN’s MONUSCO multinational security operation in the Democratic Republic of the Congo.[94]

If an individual is alleged to have committed a breach of the LOAC because of ‘superior orders’ from a superior commanding officer, this may be considered in mitigation of punishment. However, even obedience to orders from a superior officer does not relieve that individual of personal criminal responsibility unless: (a) the person was under a legal obligation to obey the order in question; (b) the person did not know that the order was manifestly unlawful; or (c) the order was not in fact manifestly unlawful in nature.[95]

Likewise, if an individual is alleged to have committed a breach of the LOAC because of ‘duress’, this may also be considered in mitigation of punishment. Duress implies that an individual has committed the breach of LOAC only because of an ‘imminent threat of death or serious bodily harm’ by another or others towards the individual (not simply a general threat of punishment or adverse consequences in the future).[96]  The defence of duress: ‘Relies on the existence of facts to show that the accused did not act of his or her own free will, but was forced to carry out the crimes instigated by another.’[97] It is important to note, however, that while the defence of duress may mitigate punishment for lesser crimes of the LOAC, it is not available as a defence for crimes involving the killing of innocent people. [98]

An individual accused of breaching the LOAC may plead ‘self-defence’, ‘defence of another’ and/or ‘defence of property’, however, where the act in question constituted a reasonable, necessary and proportionate reaction to an attack, if the individual performed the act (a) in order to defend himself/herself – or another person – from unlawful attack; or (b) in order to defend or protect property from imminent and unlawful attack in cases where either the property was essential for the survival of the individual or the other person, or essential for the accomplishment of the military mission.[99]

War crimes are usually punishable by a mandatory sentence of life imprisonment if it involves wilful killing (the same penalty as for murder), or a lesser term if it concerns allowing or inflicting inhumane treatment, great suffering, extensive destruction, or depriving ‘protected persons’ of their rights under the LOAC.[100] 

 

6

6 Military Commanders

Orders given by military commanders, including ROE and any national caveats, must comply with, and uphold, LOAC at all times (for a more thorough examination of LOAC and its influence on the formation and enforcement of national ROE, see blog “#12 The Binding Power of Rules of Engagement: Enforcement & Punishment”). 

Under the LOAC, military commanders have ‘Command Responsibility’ for acts in breach of LOAC that:

• He or she commits personally;
• He or she orders; or which
• Were committed under the commander’s effective control where
  • (1) the commander ought to have known that those forces were committing or about to commit a crime, or
  • (2) failed to take all necessary and reasonable steps within his or her power to suppress the crime or cause it to be investigated and prosecuted.[101]

The “Toast” of Shame: Bosnian Serb General Ratko Mladic (a.k.a. “The Butcher of Bosnia”, far left) drinks an alcoholic toast with Dutch UNPROFOR Commander, Lieutenant-Colonel Thomas Karremans (centre), at the main UN compound located at Potocari village within the Srebrenica Protected Area on 12 July 1995.[102]

Command responsibility (also known as ‘Yamashita Responsibility’) can in certain circumstances also apply to warlords and civilian leaders, politicians or government officials who, while not exercising actual lawful command, nevertheless exercise effective command and control over an area and a population.[103]  

Since the trial of Tomoyuki Yamashita on 1 October 1945, if a commander fails to prevent, suppress or punish breaches of LOAC he or she knows are being committed by personnel under his or her command, it is considered an abrogation of the commander’s command responsibilities, amounting to acquiescence and indirect participation in the crimes.[104]

‘Official capacity’ – a person’s status as a high-ranking military or government official with an exalted position or title – will also provide no defence or justification for breaches of the LOAC, and will not be considered in mitigation of punishment for war crimes.[105] 

 

Conclusion

The LOAC contains extremely important laws of war that all national governments and all military personnel must take into account when making decisions or taking actions in any armed conflict in which they are involved. 

On the national level, obedience to the LOAC within an armed conflict is the mark of a civilised, human-respecting, law-abiding, chivalrous and merciful nation.  On the individual level, obedience to the LOAC within an armed conflict reduces human suffering and honours adherents, while disobedience increases human suffering and brings personal dishonour – which may even lead to legal prosecution and punishment as a war criminal for the commission of war crimes.   

In sum, in wartime and in peacetime, all those who seek to be just, morally noble and legally upright in their dealings and interactions with both civilian peoples and armed forces, either in their own nation or in the territories of other nations, must distinguish between the different classes of persons involved in armed conflict, and acknowledge, respect and adhere to the appropriate laws and spirit of the LOAC.

Soldiers in the light.[106]

 

* For more analysis on the issue of “national caveats” and their impact on the effectiveness of multinational military operations conducted in the interest of establishing and maintaining international peace and security, see Dr Regeena Kingsley’s original doctoral research in Defence & Strategic Studies (2014) entitled: “Fighting against Allies: An Examination of “National Caveats” within the NATO-led International Security Assistance Force (ISAF) Campaign in Afghanistan & their Impact on ISAF Operational Effectiveness, 2002-2012”. 

Dr Kingsley’s full Thesis and its accompanying volume of Appendices can be viewed and downloaded from Massey University’s official website here: http://mro.massey.ac.nz/xmlui/handle/10179/6984.

 

Endnotes

[1] Winston S. Churchill, Memoirs of the Second World War – An abridgement of the six volumes of ‘The Second World War’, New York: Houghton Mifflin Company, 1959,  p. 12.

[2] Modified image taken from J. Stocker, ‘US service members killed in Afghanistan operation’, The Defense Post’, 22 March 2019, https://thedefensepost.com/2019/03/22/us-service-members-killed-afghanistan/, (accessed 2 May 2019).

[3] J. Derbyshire (MAJ, New Zealand Defence Force (NZDF)), ‘149.335 Material Field of Application’ in ‘Section Four: When and to Whom Does LOAC Apply’, p. 15, and ‘149.335 Prevention and punishment of breaches of LOAC’ in ‘Section Twelve: International Criminal Court and Enforcement’, p. 13., 149.335 Law of Armed Conflict, Centre for Defence Studies, Massey University College of Humanities and Social Sciences, Palmerston North, New Zealand, 2008.

[4] Derbyshire, ‘149.335 Introduction to LOAC’, in ‘Section One: Introduction to LOAC and Historical Development’, 149.335 Law of Armed Conflict, ibid., p. 14.

[5] Derbyshire, ‘149.335: Command Responsibility and Superior Orders’, in ‘Section Two: Basic Principles of LOAC, NZDF Code of Conduct and Command Responsibility’, 149.335 Law of Armed Conflict, ibid., pp. 30-31.

[6] Derbyshire, ‘149.335: Command Responsibility and Superior Orders’ in ‘Section Two: Basic Principles of LOAC, NZDF Code of Conduct and Command Responsibility’, p. 36, and ‘149.335 Prevention and punishment of breaches of LOAC’ in ‘Section Twelve: International Criminal Court and Enforcement’, p. 11, 149.335 Law of Armed Conflict, ibid.

[7] Modified image taken from P. Gourevitch, ‘After the Genocide’, The New Yorker [Magazine], 18 December 1995, https://www.newyorker.com/magazine/1995/12/18/after-the-genocide, (accessed 14 September 2017).

[8] Modified images taken from D. Sim, ‘Srebrenica Massacre: Anniversary of 1995 Genocide Carried Out by Serb Forces During Bosnian War’, International Business Times, 10 July 2014, http://www.ibtimes.co.uk/srebrenica-massacre-anniversary-1995-genocide-carried-out-by-serb-forces-during-bosnian-war-1456177, (accessed 29 January 2018); ‘Kaznom Za Zločine – Pravdom Za Žrtve’, Tačno.net, 27 June 2017, http://www.tacno.net/banja-luka/kaznom-za-zlocine-pravdom-za-zrtve/, (accessed 14 September 2017); and ‘Ratko Mladic Conviction Caps Decades of Grief Over Srebrenica Massacre’ [photo slideshow], NBC News, 23 November 2017, https://www.nbcnews.com/slideshow/ratko-mladic-conviction-caps-decades-grief-over-srebrenica-massacre-n823311, (accessed 29 January 2018).

[9] Derbyshire, ‘149.335: NZDF Code of Conduct Card’, in ‘Section Two: Basic Principles of LOAC, NZDF Code of Conduct and Command Responsibility’, 149.335 Law of Armed Conflict, op. cit., pp. 14, 21.

[10] Derbyshire, ‘149.335 Protected Persons Under LOAC’, in ‘Section Seven: Civilians and Other Persons Specially Protected by the LOAC’, 149.335 Law of Armed Conflict, ibid., pp. 8-9.

[11] Ibid., p. 8.

[12] Modified image taken from M. Olasky, ‘Holiday Inn on Sarajevo’s Sniper Alley’, World, 28 June 2014, https://world.wng.org/2014/06/holiday_inn_on_sarajevos_sniper_alley, (accessed 14 February 2018).

[13] Modified image taken from ‘Serbian Orthodox church of St. Elijah in Podujevo destroyed in 2004 unrest by Kosovo Albanians’, Wikipedia, 23 March 2004, https://en.wikipedia.org/wiki/2004_unrest_in_Kosovo#/media/File:St._Andrew_Church,_destroyed_by_Albanians_during_the_pogrom_of_Serbs_from_Kosovo_in_March_2004.jpg, (17 January 2019).

[14] Modified images taken from ‘Kosovo – As it really is 1999-2003’, Post-War Suffering – Serbian Orthodox Diocese of Raska and Prizren, 2019, http://www.kosovo.net/report.html, (accessed 17 January 2019); ‘March Pogrom – Kosovo 17-19 March 2004’, News from Kosovo – Serbian Orthodox Diocese of Raska and Prizren, http://www.kosovo.net/news_pogrom.html, (17 January 2019); Rupert Colville, ‘Kosovo minorities still  need international protection, says UNHCR’, UNHCR The UN Refugee Agency UK, 24 August 2004, https://www.unhcr.org/news/latest/2004/8/412b5f904/kosovo-minorities-still-need-international-protection-says-unhcr.html, (accessed 17 January 2019); and ‘Burning of the Serbian village Svinjare, March 17’, Kosovo.net, 2019, http://www.kosovo.net/pogrom_march/svinjare1/page_01.htm, (accessed 17 January 2019).

[15] Derbyshire, ‘149.335 Protected Persons Under LOAC’ in ‘Section Seven: Civilians and Other Persons Specially Protected by the LOAC’, pp. 9-13, and ‘149.335: NZDF Code of Conduct Card’ in ‘Section Two: Basic Principles of LOAC, NZDF Code of Conduct and Command Responsibility’, p. 25, 149.335 Law of Armed Conflict, op. cit.

[16] Geneva Convention IV Articles 27-29 (see p.161 of the Geneva Conventions 1949, accessible here: https://www.icrc.org/en/doc/assets/files/publications/icrc-002-0173.pdf).

[17] Derbyshire, ‘149.335 Protected Persons Under LOAC’ in ‘Section Seven: Civilians and Other Persons Specially Protected by the LOAC’, 149.335 Law of Armed Conflict, op. cit., p. 9.

[18] Derbyshire, ‘Section Seven: Civilians and Other Persons Specially Protected by the LOAC’, 149.335 Law of Armed Conflict, ibid., p. 2.

[19] APII Art 4(1-2), text snapshot (underlining added) taken from ‘Treaties, States Parties and Commentaries: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977’, International Committee of the Red Cross, https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/INTRO/475?OpenDocument, (accessed 11 April 2019).

[20] Derbyshire, ‘Section Four: When and to Whom Does LOAC Apply’, pp. 12-13, ‘Section Seven: Civilians and Other Persons Specially Protected by the LOAC’, p. 2, and ‘149.335 Protected Persons Under LOAC’ in ‘Section Seven: Civilians and Other Persons Specially Protected by the LOAC’, p. 14, 149.335 Law of Armed Conflict, op. cit.

[21] Derbyshire, ‘Section Nine: Prisoners of War and Other Persons Deprived of Their Liberty’, 149.335 Law of Armed Conflict, ibid., p. 4.

[22] Derbyshire, ‘149.335 Protected persons under LOAC’, in ‘Section Seven: Civilians and Other Persons Specially Protected by the LOAC’, 149.335 Law of Armed Conflict, ibid., pp. 3-4. 

[23] J. Northam, ‘A Reporter Reflects On Rwanda: ‘It’s Like A Madness Took Over’’, NPR, 10 April 2014, https://www.npr.org/sections/parallels/2014/04/10/300980793/a-reporter-reflects-on-rwanda-its-like-a-madness-took-over?t=1557078677560, (accessed 6 May 2019).

[24] Derbyshire, ‘149.335 Protected persons under LOAC’, in ‘Section Seven: Civilians and Other Persons Specially Protected by the LOAC’, 149.335 Law of Armed Conflict, op. cit., pp. 18-19.

[25] Derbyshire, ‘149.335 NZDF Code of Conduct Card’, in ‘Section Two: Basic Principles of LOAC, NZDF Code of Conduct and Command Responsibility’, 149.335 Law of Armed Conflict, ibid., pp. 20-21.

[26] Ibid., p. 21.

[27] Derbyshire, ‘149.335 Protected persons under LOAC’, in ‘Section Seven: Civilians and Other Persons Specially Protected by the LOAC’, 149.335 Law of Armed Conflict, ibid., p. 18.

[28] Ibid., pp. 19-20.

[29] Derbyshire, ‘149.335 NZDF Code of Conduct Card’, in ‘Section Two: Basic Principles of LOAC, NZDF Code of Conduct and Command Responsibility’, 149.335 Law of Armed Conflict, ibid., p. 21.

[30] Derbyshire, ‘Section Seven: Civilians and Other Persons Specially Protected by the LOAC’, 149.335 Law of Armed Conflict, ibid., p. 4.

[31] Derbyshire, ‘149.335 Protected persons under LOAC’, in ‘Section Seven: Civilians and Other Persons Specially Protected by the LOAC’, 149.335 Law of Armed Conflict, ibid., pp. 20-22.

[32] Modified images taken from ‘SREBRENICA – Srebrenica Massacre: Hate, atrocity and misprision – July 11, 1995: The beginning of the tragedy’, TRT World [Interactive Slideshow], 2018, http://interactive.trtworld.com/srebrenica/index.html#seventh, (accessed 29 January 2018); Sim, ‘Srebrenica Massacre: Anniversary of 1995 Genocide Carried Out by Serb Forces During Bosnian War’, op. cit.; and ‘Ratko Mladic Conviction Caps Decades of Grief Over Srebrenica Massacre’ [photo slideshow], op. cit.

[33] Derbyshire, ‘Section Seven: Civilians and Other Persons Specially Protected by the LOAC’, 149.335 Law of Armed Conflict, op. cit., p. 2.

[34] Ibid., p. 2.

[35] Derbyshire, ‘149.335 Protected persons under LOAC’, in ‘Section Seven: Civilians and Other Persons Specially Protected by the LOAC’, 149.335 Law of Armed Conflict, ibid., pp. 24-25.

[36] Derbyshire, ‘Section Seven: Civilians and Other Persons Specially Protected by the LOAC’, 149.335 Law of Armed Conflict, ibid., p. 2.

[37] APII, Art 4(3), text snapshot (underlining added) taken from ‘Treaties, States Parties and Commentaries: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977’, International Committee of the Red Cross, op. cit.

[38] Derbyshire, ‘Section Four: When and to Whom Does LOAC Apply’, 149.335 Law of Armed Conflict, op. cit., p. 11.

[39] Images taken from: N. Shachtman, ‘Afghan Air War Hits 3-Year Low’, WIRED, 16 January 2012, https://www.wired.com/2012/01/afghan-air-war/, (accessed 1 May 2019); ‘Operations and  missions: past and present’, North Atlantic Treaty Organization (NATO),25 April 2019, https://www.nato.int/cps/en/natohq/topics_52060.htm, (accessed 1 May 2019); L. Eptako, ‘Then and Now: What Replaced the Toppled Saddam Statue?’, PBS Newshour, 26 August 2010, https://www.pbs.org/newshour/world/saddam-statue, (accessed 1 May 2019); and B. Young, ‘How May Operation Iraqi Freedom [OIF] Campaigns Were There?’, HIRE G.I., 14 July 2018, https://hiregi.com/2018/07/14/how-many-operation-iraqi-freedom-oif-campaigns-were-there/, (accessed 1 May 2019).

[40] Derbyshire, ‘149.335 NZDF Code of Conduct Card’ in ‘Section Two: Basic Principles of LOAC, NZDF Code of Conduct and Command Responsibility’, p. 13, and ‘Section Four: When and to Whom Does LOAC Apply’, pp. 10-11, 149.335 Law of Armed Conflict, op. cit.

[41] Modified images taken from the International Herald Tribune, www.iht.com, and ABC News, abc.news,

(accessed 14 January 2011).

[42] Nicholson, ‘A summary of the current situation regarding combatant status in IHL’, Chapter 3 Draft, pp.5-6,  https://www.jus.uio.no/smr/om/aktuelt/arrangementer/2012/docs/nicholson-draft-c3.pdf, (accessed 11 April 2019).

[43] Derbyshire, ‘Section Four: When and to Whom Does LOAC Apply’, 149.335 Law of Armed Conflict, op. cit., p. 10.

[44] Ibid., p. 11.

[45] Derbyshire, ‘NZDF LOAC Manual – Chapter 15: Prisoners of War and other persons deprived of their liberty in the course of armed conflict’, in ‘Section Nine: Prisoners of War and Other Persons Deprived of Their Liberty’, 149.335 Law of Armed Conflict, ibid., p. 41.

[46] Derbyshire, ‘Section Four: When and to Whom Does LOAC Apply’, 149.335 Law of Armed Conflict, ibid., pp. 11-12.

[47] Ibid., p. 12.

[48] Modified image taken from M. Petrou, ‘The decline of al-Qaeda’, Maclean’s, 9 September 2011, https://www.macleans.ca/news/world/the-decline-of-al-qaeda/, (accessed 1 May 2019).

[49] Derbyshire, ‘149.335 Protected persons under LOAC’, in ‘Section Seven: Civilians and Other Persons Specially Protected by the LOAC’, 149.335 Law of Armed Conflict, op. cit., p. 15.

[50] Derbyshire, ‘Section Four: When and to Whom Does LOAC Apply’, p. 9, ‘149.335 Protected persons under LOAC’, in ‘Section Seven: Civilians and Other Persons Specially Protected by the LOAC’, pp. 14-15,

‘149.335: Objects and places specially protected under LOAC’ in ‘Section Six: Objects and Places Specially Protected Under LOAC and Targeting’, p. 12, 149.335 Law of Armed Conflict, ibid.

[51] Derbyshire, ‘149.335: Objects and places specially protected under LOAC’ in ‘Section Six: Objects and Places Specially Protected Under LOAC and Targeting’, pp. 11-12, and ‘Section Seven: Civilians and Other Persons Specially Protected by the LOAC’, p. 2, 149.335 Law of Armed Conflict, ibid.

[52] Derbyshire, ‘Section Four: When and to Whom Does LOAC Apply’, p. 9, and ‘149.335 Protected persons under LOAC’, in ‘Section Seven: Civilians and Other Persons Specially Protected by the LOAC’, p. 16, 149.335 Law of Armed Conflict, op. cit.

[53] Derbyshire, ‘149.335 Protected persons under LOAC’, in ‘Section Seven: Civilians and Other Persons Specially Protected by the LOAC’, pp. 15-16, 149.335 Law of Armed Conflict, ibid.

[54] APII Art 13 and 17, text snapshot (underlining added) taken from ‘Treaties, States Parties and Commentaries: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977’, International Committee of the Red Cross, op. cit.

[55] Derbyshire, ‘Section Four: When and to Whom Does LOAC Apply’, 149.335 Law of Armed Conflict, op. cit., p. 9.

[56] APII, Art 14-16, text snapshot (underlining added) taken from ‘Treaties, States Parties and Commentaries: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977’, International Committee of the Red Cross, op. cit.

[57] United Nations (UN), ‘Observance by United Nations forces of international humanitarian law’, Secretary-General’s Bulletin no 13, 6 August 1999, in Derbyshire, ‘Section Four: When and to Whom Does LOAC Apply’, 149.335 Law of Armed Conflict, op. cit., p. 52.

[58] Modified image taken from ‘The Netherlands liable for Srebrenica Victims’ [‘Niederlande haften für Srebrenica-Opfer’], Schweizer Radio und Fernsehen (SRF), 16 July 2014, https://www.srf.ch/news/international/niederlande-haften-fuer-srebrenica-opfer, (accessed 10 October 2017).

[59] M. Nichols, ‘U.N. study finds peacekeepers avoid using force to protect civilians’, Reuters.com, 16 May 2014, http://www.reuters.com/article/2014/05/16/us-un-peacekeepers-civilians-idUSBREA4F0M220140516 (accessed 17 May 2014).

[60] Ibid.

[61] Ibid.

[62] Ibid.

[63] Churchill, Memoirs of the Second World War – An abridgement of the six volumes of ‘The Second World War’, op. cit., pp. 12-13.

[64] Ibid., p. 45.

The great writer, experienced military commander, and Prime Minister of Great Britain, Winston S. Churchill, who led Britain and the freedom-loving world to victory during World War II, made some extremely sage and powerful observations about the weakness, timidity, carelessness, negligence and failure of national governments and modern societies during the 1920s and 1930s, following the end of the First World War (1914-1918), that led directly to the outbreak of a second cataclysmic World War (1939-1945) in just over 20 years, and to a desperate fight for national survival for many of these formerly indifferent countries.

Some of these observations are well captured in the following statements made in Churchill’s memoir series on the Second World War, written during the late 1940s and the 1950s after he left office.

WWII – ‘The Unnecessary War’: ‘One day President Roosevelt told me that he was asking publicly for suggestions about what the war should be called. I said at once “the Unnecessary War.” There never was a war more easy to stop than that which has just wrecked what was left of the world from the previous struggle’ (Churchill, ibid., p. viii).

‘In these pages I attempt to recount some of the incidents and impressions which form in my mind the story of the coming upon mankind of the worst tragedy in its tumultuous history…It is my purpose, as one who lived and acted in these days, to show how easily the tragedy of the Second World war could have been prevented; how the malice of the wicked was reinforced by the weakness of the virtuous; the structure and habits of democratic states, unless they are welded into larger organisms, lack those elements of persistence and conviction which can alone give security to humble masses; how, even in matters of self-preservation, no policy is pursued for even ten or fifteen years at a time. We shall see how the counsels of prudence and restraints may become the prime agents of mortal danger; how the middle course adopted from desires for safety and a quiet life may be found to lead direct to the bull’s-eye of disaster’ (Churchill, ibid., pp. 11-13).

On Germany: ‘We shall see how absolute is the need of a broad path of international action pursued by many states in common across the years, irrespective of the ebb and flow of national politics.  It was a simple policy to keep Germany disarmed and the victors [of World War One] adequately armed for thirty years, and in the meanwhile, even if a reconciliation could not be made with Germany, to build ever more strongly a true League of Nations capable of making sure that treaties were kept, or changed only by discussion and agreement. When three or four powerful Governments acting together have demanded the most fearful sacrifices from their peoples, when these have been given freely for the common cause, and when the longed-for result has been attained, it would seem reasonable that concerted action should be preserved so that at least the essentials would not be cast away.But this modest requirement the might, civilisation, learning, knowledge, science, of the victors were unable to supply. They lived from hand to mouth and from day to day, and from one election to another, until, when scarcely twenty years were out, the dread signal of the Second World War was given, and we must write of the sons of those who had fought and died so faithfully and so well: ‘Shoulder to aching shoulder, side by side/They trudged away from life’s broad wealds of light’ (Churchill, ibid., p. 13). 

On Japan: ‘[Meanwhile] Japan could console herself with the fact that the downfall of Germany and Russia had, for a time, raised her to the third place among the world’s naval Powers, and certainly to the highest rank…She watched with attentive eye the two leading naval Powers [Britain and the United States] cutting each other down [by their belief in mutual disarmament for the war victors as well as the vanquished] far below what their resources would have permitted and what their responsibilities enjoined. Thus, both in Europe and in Asia, conditions were swiftly created by the victorious Allies which, in the name of peace, cleared the way for the renewal of war’ (Churchill, ibid., p. 10).

On Britain: ‘We must regard as deeply blameworthy before history the conduct not only of the British National and mainly Conservative Governments, but of the Labour-Socialist and Liberal Parties, both in and out of office, during this fatal period.  Delight in smooth-sounding platitudes, refusal to face unpleasant facts, desire for popularity and electoral success irrespective of the vital interests of the State, genuine love of peace and pathetic belief that love can be its sole foundation, obvious lack of intellectual vigour in both leaders of the British Coalition Government, marked ignorance of Europe and aversion from its problems in Mr. Baldwin, the strong and violent pacifism which at this time dominated the Labour-Socialist Party, the utter devotion of the Liberals to sentiment apart from reality, the failure and worse than failure of Mr. Lloyd George, the erstwhile great wartime leader, to address himself to the continuity of his work, the whole supported by overwhelming majorities in both Houses of Parliament: all these constituted a picture of British fatuity and fecklessness which, though devoid of guile, was not devoid of guilt, and, though free from wickedness or evil design, played a definite part in the unleashing upon the world of horrors and miseries which, even so far as they have unfolded, are already beyond comparison in human experience’ (Churchill, ibid., p. 45).

On the USA: ‘It is difficult to find a parallel to the unwisdom of the British and weakness of the French governments, who none the less reflected the opinion of their Parliaments in this disastrous period.  Nor can the United States escape the censure of history. Absorbed in their own affairs and all the abounding interests, activities, and accidents of a free community, they simply gaped at the vast changes which were taking place in Europe, and imagined they were no concern of theirs.  The considerable corps of highly competent, widely trained professional American officers formed their own opinions, but these produced no noticeable effect upon the improvident aloofness of American foreign policy. If the influence of the United States had been exerted, it might have galvanised the French and British politicians into action. The League of Nations, battered though it had been, was still an august instrument which would have invested any challenge to the new Hitler war-menace with the sanctions of International Law. Under the strain the Americans merely shrugged their shoulders, so that in a few years they had to pour out the blood and treasure of the New World to save themselves from mortal danger’ (Churchill, ibid., p. 38).

On the dangerous consequences of international government folly, weakness and negligence: ‘Up until the year 1934 the power of the conquerors remained unchallenged in Europe, and indeed throughout the world.  There was no moment in these sixteen years when the three former allies  [Britain, France and America], or even Britain and France with their associates in Europe, could not in the name of the League of Nations and under its moral and international shield have controlled by a mere effort of the will the armed strength of Germany.  Instead, until 1931 the victors, and particularly the United States, concentrated their efforts upon extorting by vexatious foreign controls their annual reparations from Germany.  The fact that these payments were made only from far larger American loans reduced the whole process to the absurd.  Nothing was reaped except ill-will.  On the other hand, the strict enforcement at any time till 1934 of the disarmament clauses of the Peace Treaty would have guarded indefinitely, without violence or bloodshed, the peace and safety of mankind.  But this was neglected while the infringements remained petty, and shunned as they assumed serious proportions.  Thus the final safeguard of a long peace was cast away.  The crimes of the vanquished find their background and their explanation, though not, of course, their pardon, in the follies of the victors.  Without these follies crime would have neither temptation nor opportunity’ (Churchill, ibid., p. 11).

[65] ‘UN peacekeepers told to fight back as deaths surge’, Stuff.co.nz, 24 January 2018, https://www.stuff.co.nz/world/africa/100850051/un-peacekeepers-told-to-fight-back-as-deaths-surge, (accessed 25 January 2018).

[66] T. Oladipo, ‘The UN’s peacekeeping nightmare in Africa’, BBC News, 5 January 2017, https://www.bbc.com/news/world-africa-38372614, (accessed 2 May 2019).

[67] Ibid.

[68] Ibid.

[69] Ibid.

[70] Ibid.

[71] Ibid.

[72] Ibid.

[73] Ibid.

[74] Ibid.

[75] Modified image taken from Oladipo, ‘The UN’s peacekeeping nightmare in Africa’, ibid.

[76] Ibid.

[77] Ibid.

[78] Ibid.

[79] ‘UN peacekeepers told to fight back as deaths surge’, Stuff.co.nz, op. cit.

[80] Ibid.

[81] Modified images taken from: ‘Mali: 10 UN peacekeepers killed in attack on Aguelhok base’, The Defense Post, 20 January 2019, https://thedefensepost.com/2019/01/20/mali-8-un-peacekeepers-killed-aguelhok/, (accessed 2 May 2019); S. Daniel, ‘UN peackeepers to take over from African soldiers in Mali’, Mail & Guardian – Africa’s Best Read, 29 June 2013, https://mg.co.za/article/2013-06-29-un-soldiers-to-take-over-from-african-troops-in-mali, (accessed 2 May 2019); and ‘Delays in implementing Mali peace deal mean gains for terrorists – UN peacekeeping chief’, UN News, 5 April 2016, https://news.un.org/en/story/2016/04/526062, (accessed 2 May 2019).

[82] ‘UN peacekeepers told to fight back as deaths surge’, op. cit.

[83] Ibid.

[84] Ibid.

[85] Ibid.

[86] Ibid.

[87] Modified image taken from Oladipo, ‘The UN’s peacekeeping nightmare in Africa’, op. cit.

[88] Derbyshire, ‘149.335 NZDF Code of Conduct Card’, in ‘Section Two: Basic Principles of LOAC, NZDF Code of Conduct and Command Responsibility’, 149.335 Law of Armed Conflict, op. cit., p. 25.

[89] Ibid.

[90] Ibid., p. 24.

[91] Ibid.

[92] Derbyshire, ‘149.335 Prevention and punishment of breaches of LOAC’, in ‘Section Twelve: International Criminal Court and Enforcement’, 149.335 Law of Armed Conflict, op. cit., p. 9.

[93] Ibid., p. 11.

[94] Modified image taken from ‘Canada to send troops to UN peacekeeping mission in Mali’, New Indian Express, 17 March 2018, http://www.newindianexpress.com/world/2018/mar/17/canada-to-send-troops-to-un-peacekeeping-mission-in-mali-1788547.html, (accessed 2 May 2019).

[95] Derbyshire, ‘149.335 Prevention and punishment of breaches of LOAC’, in ‘Section Twelve: International Criminal Court and Enforcement’, 149.335 Law of Armed Conflict, op. cit., p. 10.

[96] Ibid.

[97] Ibid.

[98] Ibid.

[99] Ibid., p. 11.

[100] Ibid., p. 18; Rome Statute of the International Criminal Court Art 8.

[101] Derbyshire, ‘149.335 Command Responsibility and Superior Orders’ in ‘Section Two: Basic Principles of LOAC, NZDF Code of Conduct and Command Responsibility’, p. 29, and ‘149.335 Prevention and punishment of breaches of LOAC’, in ‘Section Twelve: International Criminal Court and Enforcement’, pp. 9-10, 149.335 Law of Armed Conflict, ibid.

[102] B. Waterfield, ‘Commander of UN forces ‘aware Srebrenica massacre was about to happen’,  The Telegraph, 8 November 2011, https://www.telegraph.co.uk/news/worldnews/europe/serbia/8877056/Commander-of-UN-forces-aware-Srebrenica-massacre-was-about-to-happen.html, (accessed 25 April 2018).

[103] Derbyshire, ‘149.335 Command Responsibility and Superior Orders’ in ‘Section Two: Basic Principles of LOAC, NZDF Code of Conduct and Command Responsibility’, 149.335 Law of Armed Conflict, op. cit., p. 30.

[104] Ibid., p. 29.

[105] Derbyshire, ‘149.335 Prevention and punishment of breaches of LOAC’, in ‘Section Twelve: International Criminal Court and Enforcement’, 149.335 Law of Armed Conflict, ibid., p. 10.

[106] Modified image taken from ‘TBW Global partnering with specialist training companies’, Advance – Advancing UK Aerospace, Defence, Security & Space Solutions Worldwide (ADS Magazine),3 December 2018, https://www.adsadvance.co.uk/tbw-global-partnering-with-specialist-training-companies.html, (accessed 6 May 2019).

[107] Modified image taken from ‘History – The Fine Print of “Never Again” – the Drafting of the UN Genocide Convention’, University of Waterloo, 2013, https://uwaterloo.ca/history/events/un-genocide-convention, (accessed 23 March 2021).

[108] ‘Annan Threat’, Cox & Forkum Editorial Cartoons, 19 November 2004, http://www.coxandforkum.com/archives/000472.html, (accessed 23 March 2021).