The International Committee of the Red Cross’s upcoming revisions to its 1987 Commentary on the Additional Protocols to the 1949 Geneva Conventions provide an opportunity to reconsider the scope, meaning and application of Article 76 of Additional Protocol I (AP I), on “Protection of Women”, in military operations. Article 76 could provide a sound basis for factoring the gendered risks of international armed conflicts into differentiated protections for women consistent with the formal equality with men that is secured for them in international humanitarian law. This would include the obligations to undertake specific protective measures during military activities, to take specific precautions in attack and to ensure that attacks are proportional as set out in Articles 51 and 57 of AP I.
Total defence is based on a whole-of-society approach to defence, integrating both civilian and military capabilities. Whilst civilians and civilian objects may play an important role in national defence, such involvement may blur their status and increase their exposure to harm. This paper attempts to lay out what States need to do, in terms of compliance with international humanitarian law, in order to adequately prepare for total defence-type strategies. It will argue that when involving civilians and/or civilian objects in total defence strategies, States should do everything feasible to prevent harm to said civilians and civilian objects in line with their passive precautions obligations. Special attention should be paid to dual-use objects and the risks associated with direct participation in hostilities when doing so. Civilians should arguably also be duly informed of the risks they may incur as a result of their involvement in such strategies.
Religious freedom is protected in both international human rights law (IHRL) and international humanitarian law (IHL), yet the interference with that freedom caused by the mishandling, concealment and improper disposal of human remains in armed conflict has remained largely under-examined in the jurisprudence of the Inter-American Court of Human Rights (IACtHR). This article addresses that gap. It reconstructs the normative framework governing religious freedom in relation to the treatment of the dead under IHL and IHRL, analyzes emblematic IACtHR cases involving human remains in armed conflict settings and proposes a doctrinal path for strengthening protection in this field. The article does not contend that the IACtHR may autonomously apply IHL or declare State responsibility for violations of IHL as such; rather, it argues that, in cases arising from armed conflict, the Court may, and should, interpret American Convention on Human Rights (ACHR)-based obligations in light of IHL in order to specify duties concerning the search, recovery, identification, respectful handling, return and burial of the dead. It further argues that Article 12 of the ACHR can capture the distinct religious and spiritual dimension of the harm when funeral rites are obstructed, denied or rendered impossible.
While international humanitarian law (IHL) serves as the legal framework regulating the conduct of hostilities in order to limit civilian harm in armed conflict, it does not necessarily prescribe how parties to conflict should implement their obligations in practice. Militaries must create frameworks and tools suitable to avoiding, or in any event minimizing, harm in their operations so that those making decisions about the use of lethal force can do so on the basis of informed judgements in a good-faith effort to comply with their legal obligations. Informed by operational lessons and detailed studies illuminating repeating patterns of civilian harm, US civilian harm mitigation and response (CHMR) policy entails a significant effort to develop upstream capabilities and procedures to better mitigate civilian harm in military operations. Civilian harm risk in armed conflict cannot be reduced to zero, and there will never be a perfect information environment leading up to and during an armed conflict. However, the premise of CHMR is that patterns of harm are often knowable and foreseeable, as are the factors contributing to harm, and therefore some civilian harm can be avoided or at least minimized. This article examines the key elements of CHMR, particularly how increasing and improving information on the civilian environment, projected risks to civilians and the impact of operations on civilians stands to aid in command decision-making and risk management. It also reflects on fundamental gaps in the formulation and implementation of the CHMR policy framework-notably, the lack of measures ofperformance and the failure to specifically connect CHMR capabilities to the fulfilment of IHL obligations in the conduct of hostilities. It closes with a discussion on tailoring CHMR to match the challenges of large-scale combat and multinational operations and offers potential approaches for national militaries to develop their own capabilities and procedures for effective CHMR.
