Article 52 provides: ‘1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2

16 Article 52 provides: ‘1. Civilian objects shall not be the object of attack or of reprisals. Civilian objects are all objects which are not military objectives as defined in paragraph 2.

2. Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

3. In case of doubt whether an object which is normally dedicated to civilian purposes, such as a place of worship, a house or other dwelling or a school, is being used to make an effective contribution to military action, it shall be presumed not to be so used.’

17 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, para. 79.

18 However, in the Čelebići case, a Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) found that civilians can be considered as protected persons under Article 4 despite having the same nationality as the power in whose hand they find themselves. Applying the Nottebohm test, as applied by the International Court of Justice in the case of Liechtenstein v. Guatemala, ICJ Reps. (1955) pp. 4 at 23, the ICTY stated that ‘the International Tribunal may choose to refuse to recognize (or give effect to) a State’s grant of its nationality to individuals for the purposes of applying international law’. The Chamber emphasised ‘the necessity of considering the requirements of article 4 of the Fourth Geneva Convention in a more flexible manner. The provisions of domestic legislation of citizenship in a situation of violent State succession cannot be determinative of the protected status of persons caught up in conflicts which ensue from such events.’ Prosecutor v. Zejnil Delalić, Zdravko Mucić also known as “Pavo”, Hazim Delić, and Esad Landžo also known as “Zenga”, Case No. IT-96-21-T, Judgement, 16 November 1998, para. 263.

19 Set out in Article 1 of the Hague Regulations: ‘1. To be commanded by a person responsible for his subordinates; 2. To have a fixed distinctive emblem recognizable at a distance; 3. To carry arms openly; and 4. To conduct their operations in accordance with the laws and customs of war.’ Regulations Respecting the Laws and Customs of Land, Annex to 1907 Hague Convention IV Respecting the Laws and Customs of War on Land, Reprinted in Roberts and Guelff, op. cit. n. 8, pp. 44 at 48.

20 A.R. Thomas and J.C. Duncan, eds., Annotated Supplement to The Commander’s Handbook on the Law of Naval Operations, 73 International Law Studies (1999) pp. 296-297.

21 Watkin, loc. cit. p. 4.

22 Article 2 of the 1907 Hague Regulations Respecting the Law and Customs of War on Land provides that: ‘The inhabitants of a territory which has not been occupied, who, on the approach of the enemy, spontaneously take up arms to resist the invading troops without having had time to organize themselves in accordance with Article 1 [the qualification of belligerents], shall be regarded as belligerents if they carry arms openly and if they respect the laws and customs of war.’

23 The views of the Prussian military strategist, Karl von Clausewitz, are set out in his classical work, On Warfare (London, Penguin Classics 1982). He is most famous for his view that war is the continuation of politics by other means.

24 For a discussion of some of the new manifestations of conflict see H. Münkler, ‘The Wars of the 21^st Century’, 85 International Review of the Red Cross (2003) p. 7.

25 For a cogent analysis of the changing nature of war away Clausewitz’s Trinitarian model, see M. Van Creveld, The Transformation of War (New York, The Free Press 1991).

26 For a good general overview see M.E. Guillory, ‘Civilianizing the Force: Is the United States Crossing the Rubicon?’ 51 Air Force Law Review (2001) p. 11.

27 US Department of the Army Pamphlet 690-47, Civilian Personnel, DA Civilian Employee Deployment Guide, Headquarters of the Army, 1 November 1995.

28 Rand Research Brief 7520 (1998): Can Civilianization Save on Costs?’ http://www.rand.org/publications/RB/RB7520/.

29 S.M. Gates and A.A. Robbert, Comparing the Costs of DoD Military and Civil Service Personnel, RAND National Defense Research Institute, MR-980-OSD, 1998.

30 See on this point M.N. Schmitt, ‘Direct Participation in Hostilities and 21^st Century Armed Conflict’, Festscrift for Dieter Fleck (forthcoming 2004), pp. 501 at 509. (Thanks to the author for providing an advance copy.)

31 See Department of the Army, Pamphlet 690-47, DA Civilian Employee Deployment Guide (1 November 1995); Department of the Air Force, Instruction 36-801, Personnel, Uniforms for Civilian Employees (29 April 1994).

32 Supra n. 27.

33 T.E. Ricks, ‘The widening gap between the military and society’, The Atlantic Monthly, July 1997. http://www.theatlantic.com/issues/97jul/milisoc.htm.

34 A. Markusen, ‘The Case Against Privatizing National Security’, Paper dated 24 September 1999 prepared for discussion at the Study Group on the Arms Trade and the Transnationalization of the Defense Industry, Council on Foreign Relations, New York, 1 October 1999. http://www.cfr.org/public/armstrade/MarkusenNatSec.html.

35 Article 51(2) Additional Protocol I provides: ‘… Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited.’ Article 4(2)(d) of Additional Protocol II prohibits ‘[a]cts of terrorism’.

36 See S.M. Hersh, ‘Manhunt: The Bush administration’s new strategy in the war against terrorism’, The New Yorker, 23 and 30 December 2002.

37 P. Verri, Dictionary of the International Law of Armed Conflict (Geneva, ICRC 1992) p. 57.

38 Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, Y. Sandoz, C. Swinarki and B. Zimmerman, eds. (Geneva, ICRC/Martinus Nijhoff 1987) (Geneva, ICRC 1987) para. 1943, pp. 618-619.

39 Ibid., para. 1942, p. 618.

40 Prosecutor v. Milorad Krnojelac, Case No. IT-97-25, 15 March 2002, para. 54.

41 Y. Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict (Cambridge, Cambridge University Press 2004) p. 152.

42 Ibid., p . 152.

43 Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, 2 September 1998, para. 629.

44 Commentary, op. cit. n. 40, op. cit., para. 1679.

45 Ibid., para. 4787.

46 See F. Kalshoven and L. Zegveld, Constraints on the Waging of War (Geneva, ICRC March 2001) p. 99.

47 U.S. Navy/Marine Corps/Coast Guard, The Commander’s Handbook on the Law of Naval Operations (NWP 1-14M, MCWP P5800.7, para. 11.3 (1995). http://www.cpf.navy.mil/pages/legal/NWP%201-14/NWPCH11.htm.

48 A.P.V. Roger, Law on the Battlefield (Manchester, Manchester University Press 1996) p. 8.

49 US Executive Order 12333 and Assassination, Memorandum prepared by the Chief of the International Law Branch, Office of the Judge Advocate General, Department of the Army, 2 November 1989.

50 See Schmitt, loc. cit. n. 30, pp. 501 at 505.

51 Ibid., at p. 525.

52 Commentary, op. cit. n. 38, para. 1942.

53 It should be noted that the fact of a civilian being armed in a zone of hostilities should not of itself be sufficient to transform a peaceful civilian into a direct participant in hostilities. The weapon could be carried for various legitimate reasons, including personal self-defense. It would at least be necessary for the weapon to be used, with hostile intent, against an enemy combatant or military objective in order for the civilian to be considered as a direct participant.

54 Dinstein, op. cit. n. 41, pp. 27-28.

55 Roger, op. cit. n. 48, p. 7.

56 Kalshoven and Zegveld, op. cit. n. 46, p. 129.

57 Dinstein, op. cit. n. 41, pp. 27-28.

58 U.S. Air Force Commander’s Handbook (1980) paras. 2-8.

59 F.M3-100.21, 3 January 2003.

60 Schmitt, loc. cit., n. 30, p. 505.

61 ‘During the course of the discussions on Additional Protocol I, several delegations indicated that the expression “hostilities” used in this article included preparations for combat and the return from combat. Similar problems arose in Article 44 (Combatants and prisoners of war) with regard to the expression “military deployment preceding the launching of an attack.’ Commentary, op. cit. n. 38.

62 See Kalshoven and Zegveld, op. cit. n. 46, p. 99.

63 Commentary, op. cit. n. 38, para. 4789.

64 The Israeli Defence Forces, relying on a self-defense argument, would argue that they are acting as a matter of necessity, given that there is, in their view, no other—or more effective—way to neutralize the terrorist threat.

65 Schmitt, loc. cit. n. 30, p. 506.

66 Prosecutor v. Dusko Tadic a/k/a “Dule”, Case No. IT-94-1-T, Opinion and Judgment, 7 May 1997, para. 207.

67 Ibid., para. 573.

68 The Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-T, Judgement, 25 June 1999, para. 45.

69 The Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T, Judgement and Sentence, 27 January 2000, para. 973. See also paras. 259-262.

70 The Prosecutor v. Georges Anderson Nderubumwe Rutaganda, Case No. ICTR-96-3-T, Judgement and Sentence, 6 December 1999, para. 104.

71 Ibid., para. 105.

72 Supra n. 18.

73 Prosecutor v. Dragoljub Kunarac, Radomir Kovač and Zoran Vuković, Case No. IT-96-23-T&IT-96-23/1-T, Judgement, 22 February 2001, para. 407.

74 Akayesu Trial Judgement, supra n. 43, para. 633. Emphasis added.

75 Ibid., para. 640.

76 The Prosecutor v. Clement Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement, 21 May 1999, para. 175.

77 The Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-A, Judgement, 1 June 2001, para. 436.

78 Ibid., para. 437.

79 Ibid., para. 444.

80 See Kalshoven and Zegveld, op. cit. n. 46, p. 99.

81 Article 75 of Additional Protocol I sets out a series of fundamental guarantees or minimum standards that must be observed in relation to all persons who have fallen into the hands of the enemy and who do not benefit from more favourable treatment, including protection against violations to their physical integrity and minimum standards of due process in case of trial.

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