The Purpose of IHL
International humanitarian law (IHL) provides basic protections to those who are not or no longer participating in armed conflict, aiming to alleviate unnecessary suffering and uphold the minimum standards of humanity in armed conflict situations. At a very rudimentary level, IHL’s efforts to limit unnecessary suffering through its principles of distinction, proportionality, and precautions are severely undermined by the urbanization of warfare which not only presents a greater threat to civilians due to proximity of hostilities but also represents logistical challenges to belligerent parties posed by the ‘fog of war’.1Dapo Akande, ‘Clearing the Fog of War? The ICRC’s Interpretive guidance on direct participation in hostilities’ 2010 https://www.jstor.org/stable/25622275
Urbanization of Conflict
In practice, the urbanization of conflict brings civilians and armed groups or irregular fighters into the same domain, where the latter refrain from wearing distinguishable uniforms and are often conflated with civilians.5Nils Melzer, ‘Interpretive guidance on the notion of Direct participation in hostilities under international humanitarian law’ 2009 https://www.icrc.org/en/doc/assets/files/other/icrc-002-0990.pdf This is largely due to the shift in the domain of battle from traditionally empty and open battle spheres to centralized and densely populated areas where parties become ‘blurred into the same force or are applied in the same battlespace’ and it becomes difficult to tell whether a person is engaging in the conflict at a level sufficient to strip her/him of protection.6 Frank Hoffman, ‘Hybrid Warfare and Challenges’ 2009 https://smallwarsjournal.com/documents/jfqhoffman.pdfTherefore, the likelihood of increased attacks and erroneous judgment targeting civilians in urban warfare increases due to proximity and intermingling between civilians and legitimate military objectives.7Nils Melzer, ‘The Principle of Distinction Between Civilians and Combatants’ 2014 https://www.oxfordhandbooks.com/view/10.1093/law/9780199559695.001.0001/law-9780199559695-e-12This is also a result of uncertainty as to which actors are actually conducting hostilities and would therefore be lawful targets.
Similarly, increased reliance by armed groups on civilian objects such as schools for shelter, hospitals to hide weapons, or bridges to transport weapons, is a dilemma for adversaries as it makes it difficult to distinguish between legitimate military objectives and civilian objects used by armed factions. 8ICRC, ‘ICRC report on IHL and the challenges of contemporary armed’ conflicts 2019 https://www.icrc.org/en/document/icrc-report-ihl-and-challenges-contemporary-armed-conflictsThis is because even though IHL specifies that objects which by their location, purpose and use effectively contribute to the military operation and “whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage” may be targeted, the destruction of these objects can have indirect yet long-term impacts on the civilian population.9Customary IHL— Rule 8. Definition of Military Objectives https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule8 For example, while destroying an electric grid providing armed groups with telecommunications allowing them to plan their operations may constitute a legitimate military target, the effects of this can also impact the civilian population by affecting services linked to the grid such as wastewater collection systems, health care and hospital services – i.e. essential services needed to sustain the civilian population.10Gisel et al, ‘Urban warfare: an age-old problem in need of new solutions’ 2021 https://blogs.icrc.org/law-and-policy/2021/04/27/urban-warfare/The outbreak of water-borne diseases like cholera and diarrhea have emerged in Yemen, following the destruction of water facilities preventing access to clean water supply in what is already a dry region.11Frederik Federspiel and Mohammed Ali, ‘The cholera outbreak in Yemen: lessons learned and way forward’ 2018 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6278080/ Therefore, countries facing conflict suffer from the direct impact of conflict and the indirect, long-term impacts of attacks, causing further instability.
Principle of Proportionality
The issue of distinguishing in urban warfare is closely linked to the principle of proportionality which prohibits attacks expected to cause incidental harm that is excessive when weighed against the concrete and direct military advantage.12Customary IHL— Rule 14. Proportionality in Attack https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule14This obligation requires parties to take into account the foreseeable reverberating effects on civilians and civilian objects when conducting attacks, and requires a more calculated judgment in urban areas given the presence of critical infrastructure that may indirectly impact civilians.13Relief Web, ‘Security Council strongly condemns attacks against critical civilian infrastructure, unanimously adopting Resolution 2573 (2021)’ 2021 https://reliefweb.int/report/world/security-council-strongly-condemns-attacks-against-critical-civilian-infrastructureFor example, parties must deliberate on the foreseeable reverberating effects of incidental damage to critical civilian infrastructure like electrical power plants that sustain hospitals.
Urban warfare therefore threatens civilians due to the often indirect and reverberating effects of means and methods of warfare that are traditionally used in large open battlefield spaces.
Principle of Precautions
Moreover, the principle of precaution requires parties to the conflict to take all feasible precautions to protect the civilian population and civilian objects under their control against the effects of attacks.18Customary IHL— Rule 22. Principle of Precautions against the Effects of Attacks https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule22 Feasible precautions are those which are practically possible considering the surrounding circumstances at the time including humanitarian and military considerations. This requires armed groups to take into account and conduct thorough intelligence and reconnaissance, and to plan their missions ahead of operations.19Jeroen C Van Den Boogaard and Arjen Vermeer, ‘Precautions in Attack and Urban and Siege Warfare’ 2017 https://link.springer.com/chapter/10.1007/978-94-6265-264-4_5 In the urban context, this may be unfeasible and impractical given the quickly changing and irregular fighting style that dominate the majority of today’s urban conflicts which are usually of non-international character.20Eric David, ‘Internal (Non-International) Armed Conflict’ 2014 https://www.oxfordhandbooks.com/view/10.1093/law/9780199559695.001.0001/law-9780199559695-e-14
At the most basic level, non-state armed groups may simply not have the means to collect accurate and quality intelligence on their adversaries in order to take precautions.21Ibid 19
Given the close link between rules of IHL, similar to the application of proportionality, the principle of precaution requires that both direct and indirect harm be weighed in the assessment, a challenge in the complex setting of urban war where legitimate targets-turned civilian objects require battlefield decisions to be taken in the heat of the moment. For example, when considering targeting a water and sewage system that has turned into a military objective,22 Ellen Nohle and Isabel Robinson, ‘War in cities: The ‘reverberating effects’ of explosive weapons’ 2017 https://blogs.icrc.org/law-and-policy/2017/03/02/war-in-cities-the-reverberating-effects-of-explosive-weapons/this decision must take into account the impact this will have on civilians relying on those systems or whether there is a likelihood that such an attack would result in the spread of disease, for instance.23 UNICEF, ‘Statement from UNICEF Executive Director Anthony Lake and WHO Director-General Margaret Chan on the cholera outbreak in Yemen as suspected cases exceed 200,000’ 2017 https://www.unicef.org/press-releases/statement-unicef-executive-director-anthony-lake-and-who-director-general-margaretThis is because in urban contexts, every military decision is likely to have an impact on the civilians surrounding the area.
Ultimately, efforts to limit the severities of war are undermined by the urbanization of warfare which sees civilians representing the overwhelming majority of victims. The proximity between military objectives and civilian objects, the use of unsuitable means of warfare and difficulty in adapting such use of means and methods in urban contexts pose practical challenges to the application of international humanitarian law.
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