Applicable International Humanitarian Law

The fundamental tenets of the laws of war are civilian immunity from attack and distinction. While humanitarian law recognizes that some civilian casualties are inevitable, it imposes a duty on warring parties at all times to distinguish between combatants and civilians, and to target only combatants and other military objectives.

Civilian objects are those that are not considered military objectives.[63] Military objectives are combatants, including civilians directly participating in the hostilities, and those objects that “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.”[64]

In general, the law prohibits direct attacks against what are by their nature civilian objects, such as homes and apartments, places of worship, hospitals, schools, or cultural monuments, unless they are being used for military purposes.[65]

Deliberate, indiscriminate, or disproportionate attacks against civilians and civilian objects are prohibited. Attacks are indiscriminate when they are not directed at a specific military objective, or employ a method or means of warfare that cannot be directed at a military objective or whose effects cannot be limited.[66] It is also prohibited as an indiscriminate attack to treat as a single military objective a number of clearly separated and distinct military objectives located in a city, town, village or other area containing a similar concentration of civilians or civilian objects.[67] Threatening such attacks may amount to acts in which the primary purpose is to spread terror among the civilian population.[68]

A disproportionate attack is one in which the expected incidental loss of civilian life and damage to civilian objects would be excessive in relation to the concrete and direct military advantage anticipated.[69] The expected danger to the civilian population and civilian objects depends on various factors, including their location (possibly within or near a military objective), the accuracy of the weapons used (depending on the trajectory, the range, environmental factors, the ammunition used, etc.), and the technical skill of the combatants (which can entail random launching of weapons when combatants lack the ability to aim effectively at the intended target).[70]

In the conduct of military operations, parties to a conflict must take constant care to spare the civilian population and civilian objects from the effects of hostilities.[71] Parties are required to take precautionary measures with a view to avoiding, and in any event minimizing, incidental loss of civilian life, injury to civilians, and damage to civilian objects.[72]

Before conducting an attack, a party to the conflict must do everything feasible to verify that the persons or objects to be attacked are military objectives and not civilians or civilian objects.[73] According to the International Committee of the Red Cross (ICRC) the requirement to take all “feasible” precautions means, among other things, that those conducting an attack are required to take the steps needed to identify the target as a legitimate military objective “in good time to spare the population as far as possible.”[74] They also must take all feasible precautions in the choice of means and methods of warfare to minimize loss of civilian life and property.[75]

The laws of war do not prohibit fighting in urban areas, although the presence of civilians places greater obligations on warring parties to take steps to minimize harm to civilians. Forces must avoid locating military objectives within or near densely populated areas, and endeavor to remove civilians from the vicinity of military objectives.[76] Belligerents are also prohibited from using civilians to shield military objectives or operations from attack. "Shielding" refers to purposefully using the presence of civilians to render military forces or areas immune from attack.[77] The unlawful deployment of forces within or near densely populated civilian areas does not relieve opposing forces from taking into account the risk to civilians when conducting attacks. The obligation to respect the laws of war does not depend on reciprocity by belligerent forces.[78]

Human Rights Watch opposes the use of aerial bombs and other explosive weapons with wide area effect in populated areas due to the inevitable civilian harm caused.

Individuals who commit serious violations of international humanitarian law with criminal intent are responsible for war crimes. Criminal intent has been defined as violations committed intentionally or recklessly.[79] Individuals may also be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, aiding, or abetting a war crime. Responsibility may also fall on persons planning or instigating the commission of a war crime.[80]  Military commanders and civilian leaders may also bear personal responsibility as a matter of command responsibility if they knew or should have known about the commission of war crimes and failed to prevent them or punish those responsible.

Those acts considered to be war crimes can be found in customary law as reflected in the Rome Statute of the International Criminal Court (ICC) and other sources. They include a wide array of offenses, including deliberate, indiscriminate, and disproportionate attacks harming civilians, and mistreatment of persons in custody.[81]