War crimes related to the decision to carry out attacks during the conduct of hostilities are almost always defined in terms of conduct and not result (Article 8(2)(b) of the Rome Statute of the International Criminal Court). Yet it is common for critiques of such decisions to focus on attack results as proof of their alleged illegality. While such results are probative of compliance or non-compliance with international humanitarian law rules regulating the conduct of hostilities, they should rarely be indisputable. This article addresses the challenge of attaching probative value to attack results when assessing responsibility for alleged war crimes based on allegedly illicit attack decisions.

Both international humanitarian law (IHL) and international human rights law (IHRL) make extensive references to humanity. Yet the role attributed to humanity differs between the two. Humanity is seen in IHRL as the source of the rights, whereas in IHL it is interpreted as a moral obligation to avoid harm. This article challenges this perspective. Relying upon contemporary interpretations of IHL, it will be argued that, in a moral sense, IHL matches up closely with IHRL. Crucial here is that humanity, rather than reflect a utilitarian perspective to avoid harm, is worded in stronger terms. To reflect this accurately, it is argued that IHL is best seen as a reflection of TM Scanlon's contractualism as opposed to utilitarian reasoning. Relying upon the similarities in moral reasoning visible in both bodies of law, the article argues that this should also be reflected when it comes to redress for violations. In a concrete sense, the argument here is that this also presents a moral requirement to recognise individual claims within IHL. To give legal effect to this moral demand, it is suggested that IHRL might play a role in bridging the gap between the moral and legal considerations in IHL.

Dr Eirini Giorgou is a Legal Adviser in the International Committee of the Red Cross (ICRC) Arms and Conduct of Hostilities Unit, where she works, among other issues, on explosive weapons in populated areas and on nuclear weapons. She has several years’ experience in multilateral disarmament and arms control diplomacy and negotiations outside the ICRC. She is a licensed lawyer and holds a PhD in international law from the University of Geneva.

In some non-international armed conflicts (NIACs) a foreign state is involved in favour of an armed group. This poses a challenge to classifying these armed conflicts under IHL. This article argues that evaluating the actions of a foreign state is best carried out by application of the ‘overall control’ test as developed by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in the Tadić case. The advantages of this approach are twofold. First, it is a more realistic benchmark for generating the required evidence than the complete dependency or effective control tests developed by the International Court of Justice. Second, using this test makes it less likely for a state to escape its responsibilities under IHL when it acts through armed groups in a prima facie NIAC on the territory of another state. To arrive at this conclusion, the article first critically discusses the different control tests. It then advances that Article 4 of Geneva Convention III 1949 and Article 29 of Geneva Convention IV 1949 themselves contain a threshold of control that can be used to identify foreign state participation in a prima facie NIAC.

Under treaty law all civilian objects are protected in international armed conflicts (IAC) whereas it is only certain civilian objects that enjoy protection under treaty law in non-international armed conflicts (NIAC). However, it is commonly argued that all civilian objects are protected in NIAC under customary law. This article examines the reasons for the differences in the protection of civilian objects under treaty law and the argument that customary law now provides equal protection for all civilian objects under both IAC and NIAC. The article argues that this equal protection may hinder the ability of states to maintain law and order under their domestic law in NIAC in situations where they may need to destroy property which belongs to armed opposition groups. The article advances the argument that the law regarding targeting should be that all civilian objects are protected in NIAC but, unlike the protection of civilian objects in IAC, this protection does not bar a state from destroying in its territory objects which were considered to be illegal under domestic law before the commencement of the NIAC, in accordance with international human rights law as lex specialis.