CYIL vol. 8 (2017)

TAMÁS LATTMANN CYIL 8 ȍ2017Ȏ There are some very clear obligations deriving from this. If a planned attack is to violate the principle of proportionality, the commencing armed forces either have to refrain from launching the attack, or suspend the attack if this is still possible, or re-plan the attack, for example choose a different weapons system or attack method. Failure to comply with these obligations may lead not only to the responsibility of the state but also to individual criminal responsibility of the military personnel associated with the attack. 39 Intervening states have to prevent this from happening during hostilities with IS forces not only for legal reasons. As we could see, some amount of collateral damage is acceptable under IHL – but probably much less is acceptable in the eyes of the public, which will keep an eye on the conflict via modern, quickly reacting media. One of the most important tools in the hands of the weaker party in an asymmetric conflict is the political one: any act of collateral damage will be used for political propaganda if it satisfies the legal requirements of not qualifying for a violation. 4.4 The Use of Protected Persons for Shielding A constantly growing practice of the past decades, especially during asymmetric conflicts, is the use of civilians or other protected persons (for example prisoners of war) to shield military objectives, personnel or military operations from attack by the enemy. This is an effective tactic under modern circumstances not only because of the fear of the loss of civilian or innocent life, but also because of the potential amplifying effect of modern media present everywhere. Of course these activities are strictly prohibited by the Geneva Conventions, 40 the 1 st Additional Protocol, 41 and also qualified as a war crime under the Rome Statute, 42 but unfortunately this does not disturb those who wish to employ this method as a combat tactic. Actions like this from IS are hardly foreseeable and even harder to prevent, so the real task for intervening states is to prepare to handle a situation like this. As we have seen before, IHL provisions condemn such behaviour and do not absolutely prohibit the other party from commencing the attack, putting the responsibility for the one that has created the situation; still serious considerations are needed before getting satisfied with the legal situation. First of all, the principle of proportionality is still applicable in these situations, which can be considered as being special collateral damage situations. Practically the same out-of-law considerations have to be taken as with collateral damage. Especially in the case of prisoners of war from intervening states being used as shielding objects, which may draw additional, domestic legal considerations, making the situation extremely hard, not only legally, but politically. 4.5 Reprisals Reprisals, meaning a violation of law in return for a previous violation has served as part of military conduct ever since mankind has engaged in any form of regulated combat. 43 The problem with them, especially under modern combat circumstances is, that they usually 39 Rome Statute. Art 2 Para (a) (iv), Para (b) (iv), (xiii), Para (e) (xii). 40 4 th Geneva Convention. Art. 28.

41 1 st Additional Protocol. Art. 51 Para. 7. 42 Rome Statute. Art. 8 Para. 2 (b) (xxiii).

43 For an historic example, see: COCKBURN, Andrew, Washington is burning – Two centuries of racial tribulation in the nation’s capital, Harper’s, September 2014. Available online: http://harpers.org/archive/2014/09/ washington-is-burning/ (1 May 2017).

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