Brief Q & A on the Fighting in Afghanistan
1. What international humanitarian law applies to the current conflict in Afghanistan?
The armed conflict in Afghanistan is governed by international treaty as well as the rules of customary international humanitarian law.
Customary laws of war set out the protections to civilians and other noncombatants from the hazards of armed conflict. They address the conduct of hostilities – the means and methods of warfare – by all sides to a conflict. Foremost is the rule that parties to a conflict must distinguish at all times between combatants and civilians. Civilians may never be the deliberate target of attacks. As discussed below, warring parties are required to take all feasible precautions to minimize harm to civilians and civilian objects. Attacks may target only military objectives. Attacks targeting civilians or that fail to discriminate between combatants and civilians, or would cause disproportionate harm to the civilian population compared to the anticipated military gain, are prohibited.
States are also obligated to respect international human rights law in areas where they have effective control unless it is superseded by more specific international humanitarian law.
2. Who is subject to military attack?
The laws of war limit permissible means and methods of warfare by parties to an armed conflict and require them to respect and protect civilians and captured combatants. The fundamental tenets of this law are "civilian immunity" and the principle of “distinction.” While the laws of war recognize that some civilian casualties are inevitable during armed conflict, they impose a duty on warring parties at all times to distinguish between combatants and civilians, and to target only combatants and other military objectives.
The laws of war also protect civilian objects, which are defined as anything not considered a military objective. Prohibited are direct attacks against civilian objects, such as homes and apartments, places of worship, hospitals, schools, and cultural monuments – unless they are being used for military purposes. Civilian objects become subject to legitimate attack when they become military objectives – that is, when they are making an effective contribution to military action and their destruction, capture, or neutralization offers a definite military advantage. This would include the deployment of military forces in what are normally civilian objects. Where there is doubt about the nature of an object, it must be presumed to be civilian.
The laws of war prohibit indiscriminate attacks. Indiscriminate attacks are of a nature to strike military objectives and civilians or civilian objects without distinction. Examples of indiscriminate attacks are those that are not directed at a specific military objective or that use weapons that cannot be directed at a specific military objective. Prohibited indiscriminate attacks include area bombardment, which are attacks by artillery or other means that treat as a single military objective a number of clearly separated and distinct military objectives located in an area containing a concentration of civilians and civilian objects.
Also prohibited are attacks that violate the principle of proportionality. Disproportionate attacks are those that may be expected to cause incidental loss of civilian life or damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated from the attack.
3. What are the obligations of warring parties with respect to fighting in populated areas?
International humanitarian law does not prohibit fighting in urban areas, although the presence of many civilians places greater obligations on warring parties to take steps to minimize harm to civilians.
The laws of war require that the parties to a conflict take constant care during military operations to spare the civilian population and to “take all feasible precautions” to avoid or minimize the incidental loss of civilian life and damage to civilian objects. These precautions include doing everything feasible to verify that the objects of attack are military objectives and not civilians or civilian objects, and giving “effective advance warning” of attacks when circumstances permit.
Forces deployed in populated areas must avoid locating military objectives – including fighters, ammunition, and weapons – in or near densely populated areas, and endeavor to remove civilians from the vicinity of military objectives. Belligerents are 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.
At the same time, the attacking party is not relieved from its obligation to take into account the risk to civilians, including the duty to avoid causing disproportionate harm to civilians, simply because it considers the defending party responsible for having located legitimate military targets within or near populated areas.
States have an obligation to investigate alleged violations of the laws of war by their forces and take appropriate action to hold those responsible for violations to account.
4. What are the legal protections for hospitals, medical personnel, and ambulances?
Medical units are civilian objects that have special protections under the laws of war. They include hospitals, clinics, medical centers, and similar facilities, whether military or civilian. While other presumptively civilian structures become military objectives if they are being used for a military purpose, hospitals lose their protection from attack only if they are being used, outside their humanitarian function, to commit “acts harmful to the enemy.” Several types of acts do not constitute “acts harmful to the enemy,” such as the presence of armed guards, or when small arms from the wounded are found in the hospital. Even if military forces misuse a hospital to store weapons or shelter able-bodied combatants, the attacking force must issue a warning to cease this misuse, setting a reasonable time limit for it to end, and attacking only after such a warning has gone unheeded.
Under the laws of war, doctors, nurses, and other medical personnel must be permitted to do their work and be protected in all circumstances. They lose their protection only if they commit, outside their humanitarian function, acts harmful to the enemy.
Likewise, ambulances and other medical transportation must be allowed to function and be protected in all circumstances. They lose their protection only if they are being used to commit acts harmful to the enemy, such as transporting ammunition or healthy fighters.