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HHS ILSA LAW JOURNAL ISSUE II

ISSN: 2772-9486

CONTENTS EDITOR-IN-CHIEF’S NOTE ................................................................................................ 2 THE GUEST EDITORS .......................................................................................................... 3 ACKNOWLEDGEMENTS .................................................................................................... 5 The R2P Doctrine and NATO’s 2011 Humanitarian Intervention in Libya By Mina Tancheva ..................................................................................................................... 6 Mandate Limitations and Their Impact on the Effectiveness of UNPROFOR in Srebrenica: Implications for Strengthening the United Nations’ Humanitarian Protection Capacity By Melisa Yusufova ................................................................................................................. 24 Intersectional Approaches to the Protection of Women in International Humanitarian Law By Karina Balaban ................................................................................................................... 37 The Principle of Proportionality in Drone Warfare By Leon Paladinić .................................................................................................................... 67

EDITOR-IN-CHIEF’S NOTE Dear readers, On behalf of the Editorial Board, it is my distinct pleasure to officially present you the second issue of the HHS ILSA Law Journal for 2025. First launched in 2016 under the auspices of the Hague Chapter of the International Law Students Association (HHS ILSA), the HHS ILSA Law Journal invites student and alumni of the International and European Law Programme at The Hague University of Applied Sciences to respond to our biannual Call for Submissions. We aim to promote scholarly reflection on current and emerging topics of International and European law. By encouraging the critical study of contemporary developments, the Journal strives to give voice to an array of perspectives in identifying impending challenges, as well as offering possible solutions to them. This issue of the Journal focuses on the topic of The Role of International Law in times of Crisis. The first quarter of the 21st century has seen a myriad of crises, from armed conflict and humanitarian emergencies to regional and global health disasters. Crises are constantly evolving alongside technology and our environment. This constant evolution and shift in the nature of crises stretch the barriers of international law; consequently, it must adapt, and often quickly, as it faces new challenges. Contemporary crises impacting humanity require new approaches and in order to effectively respond to these. It is on the new modern emergencies that threaten societies that we wish to foster discussion to define the role that international law takes when facing these crises. We are pleased to present you with a great selection of contributions that illustrates the diversity and pertinence of the issues explored in this publication. We hope that you enjoy this issue, and find its contents curious, stimulating, and thought-provoking. On behalf of the editorial team, I wish you a pleasant read! Ms. Aurelie Levesque 2025-2026 Editor-in-Chief of the HHS ILSA Law Journal

THE GUEST EDITORS Dr. Friedemann Groth Dr. Friedemann Groth has been a lecturer in EU Law, Public International Law, and International Criminal Justice at The Hague University of Applied Sciences (THUAS) since 2023. In addition to teaching in these fields, he coaches the university’s team for the Telders Moot Court Competition in international law. He obtained his First State Examination in German Law (University of Freiburg) and his Second State Examination (Hamburg Higher Regional Court). During the clerkship at the Hamburg court, he was seconded to various courts, to Eurojust in The Hague, and to other institutions. At the Max Planck Institute for the Study of Crime, Security and Law, Dr. Groth led the project Reflections in Gun Laws—The Different Understandings of ‘State’ in Germany and the United States. He published his doctoral thesis under the same title and obtained a PhD in law (magna cum laude). It examines the concepts of “State”, “Sovereignty”, and “The Rule of Law” from a culture-conscious perspective. It contextualizes fundamental rights, the state’s monopoly of force, and the state’s duty to protect, situating these themes within a comparative history of gun laws. His research included a stay as an Affiliate Faculty Visiting Scholar at George Mason University in Arlington, VA. During his PhD research, Dr. Groth worked in academia, teaching courses in German Public Law, and served as the University of Freiburg’s contact point for the trinational and interdisciplinary Graduate Academy for Security, Risk, and Orientation. For the university’s Centre for Security and Society, he managed project-based cooperation with partner universities from the France–Germany–Switzerland border region. He has published on topics including the universality of human rights, the state of exception in EU law, and the use of equality considerations by the German Federal Constitutional Court. His practical experience includes work as an attorney in civil public, and administrative law. He has also worked extensively in cross-cultural training and volunteer preparation. In addition to Germany and the Netherlands, he has lived in the United States, Mexico, and Italy. Ms. Chizu Matsushita, LL.M. (Adv.), MA Ms Chizu Matsushita is a lecturer in the Peace, Justice & Human Rights minor, Facilitation, and Intercultural Communication within the International Public Policy & Leadership Programme at The Hague University of Applied Sciences (THUAS). She brings more than 3

twenty years of professional field experience in the protection of displaced persons, the implementation of international conventions, and stakeholder engagement at the UN High Commissioner for Refugees (UNHCR) and the Organisation for the Prohibition of Chemical Weapons (OPCW). As a senior staff member, she worked with governments to strengthen asylum legislation and policy, designed and delivered learning programmes, and facilitated fora ranging from participatory community processes to high-level meetings with government officials. She has lived and worked in Eastern and Southern Africa, Central and South-East Asia, and the Middle East, integrating real-world insights with theoretical analysis and policy advising. Ms Matsushita also serves on the Supervisory Board of The Hague Humanity Hub. In her independent practice, she is a certified professional facilitator and coach who leads dialogue processes and community-centred initiatives that foster meaningful communication and collective reflection. She is committed to supporting individuals in the social impact sector as they navigate change and enhance their wellbeing. She holds an MA in the Theory & Practice of Human Rights from the University of Essex and an LL.M. (Adv.) in Public International Law from Leiden University. Ms Carol Kerolos, LL.M Carol Kerolos serves as a Practice & Skills Instructor at The Hague University of Applied Sciences (THUAS). She holds a master’s degree in public international law from the University of Amsterdam. Previously, she worked as a researcher on projects addressing digital and privacy rights, trial rights, freedom of expression and humanitarian law. She currently acts as a tutor for the international law and public international law modules at THUAS.

ACKNOWLEDGEMENTS The ILSA Law Journal would first like to thank the authors who shared their outstanding contributions in this issue. We are incredibly grateful for the unwavering trust, patience, and enthusiasm they showed towards the realization of this publication. We would also like to take this opportunity to express our sincere appreciation to the Guest Editors: Dr. Friedemann Groth, Ms. Chizu Matsushita, and Ms. Carol Kerolos. We are deeply thankful for the continuous support and guidance they have provided us in conducting the selection and editorial process. The Journal would also like to thank the 2025-2026 ILSA Management Board for its unparalleled support and encouragement. We would like to extend our gratitude to President and Treasurer Konstantinos Karlos, Vice-President and Head of Social Events Ms. Kiahara Fleming, Head of Main Events Ms. Amal Mohamed, Head of Marketing Ms. Melisa Yusufova, and Editor in Chief of the ILSA Journal Ms. Aurelie Levesque. Finally, we would like to thank the editorial team for their diligence and determination. The Journal would like to express its sincere appreciation for the participation of its members, including Secretary Trudy Fenny, Managing Editor Samuel Kiss-Roth, and Editors The selection process was solely conducted by the Guest Editors so as to avoid any bias and to ensure that the selection was based on merit.

The R2P Doctrine and NATO’s 2011 Humanitarian Intervention in Libya By Mina Tancheva* Abstract This article aims to assess the level of legitimacy of the 2011 NATO humanitarian intervention in Libya, mainly orchestrated by the United States and France. After an introduction into the particulars of Libya’s political shifts and civil environment, this paper shall portray the legal history of the Responsibility to Protect (R2P) Doctrine and impugn its specific enforceability in the context of a civil war outbreak in Libya. A rightful depiction of this case cannot go without a deeper dive into the concept of humanitarian intervention and the United Nation Security Council Resolutions which authorised such in Libya. An evaluation of NATO actions taken in the course of this humanitarian mission will be followed by an extrapolation of possible legislatives reform that could aid in preventing another arguably unsuccessful intervention. In the preparation of this article, use has been made of International Relations scholars’ theoretical perspectives, legislative proposals by lawyers, and dogmatic analyses of political scientists. However, as political as this subject is, main emphasis should remain on the legality of NATO’s humanitarian intervention and consequences upon the international community and aspiring diplomats.

* L.L.B. Candidate, International and European Law Programme, The Hague University of Applied Sciences.

Introduction

Once the Arab spring movement, originating from Tunisia, spilled into the borders of its oil-rich neighbour on 16 February 2011, Libya was rapidly engulfed in turmoil. Revolutionary protests in Benghazi against Libyan leader Moamer Gaddafi, followed by the regimes’ brutal retaliation, quickly drew international concern, and ultimately led to foreign intervention. 1 The United States (US) is a state actor with interest in Libya’s abundance in energy recourses, due to its unique position in the global energy landscape. 2 As oil economist Philip Verleger notes, Libya produces highly valued light, sweet crude with extremely low sulphur content that yields large quantities of diesel and jet fuel, a product vital to both commercial and military sectors. 3 This quality makes Libyan crude difficult to replace: refining it is inexpensive, averaging only about US$ 1.00 per barrel, and equivalent output cannot be easily achieved with higher-sulphur alternatives such as Saudi crude. 4 As a result, Washington had long sought to prevent commercial agreements while fostering a broader, stable partnership with Libya’s oil sector. 5 Sustaining reliable Libyan production was important not only for US energy security, but also for preventing disruptions that could destabilize global markets. 6 Prolonged instability threatened to remove Libyan crude from world markets, posing direct risk to US economy and reinforcing the strategic rationale for US and NATO efforts to push for political change in Libya. 7 So, the US swiftly admonishes Gaddafi of the urgent need for a democratic reform. When this warning had no measurable effect on the escalating violence and rising civilian casualties, the international community faced a dilemma, which represents the

Chilaka Chigozie, ‘NATO’s Intervention in Libya: A Humanitarian Success?’ (2013) 1(1) Net Journal of Social Sciences 5, <https://www.netjournals.org/z_NJSS_13_014.html> accessed 22 October 2025. Christopher Joyce, ‘Ripple in Libyan Oil Markets Make Waves Worldwide’ (National Public Radio, 25 February 2011) <https://www.npr.org/2011/02/25/134056647/ripple-in-libyan-oil-markets-make-waves-worldwide> accessed 28 November 2025. 3 Christopher Joyce, ‘Ripple in Libyan Oil Markets Make Waves Worldwide’ (National Public Radio, 25 February 2011) <https://www.npr.org/2011/02/25/134056647/ripple-in-libyan-oil-markets-make-waves-worldwide> accessed 28 November 2025. 4 ibid. 5 Zyad Muhammad Nuri ‘The Role of the United States (U.S.) Interests in the Intervention in Libya 2011” (International Affairs and Global Strategy, September 2024) <https://www.researchgate.net/publication/384104485_The_Role_of_the_United_States_US_Interests_in_the_I ntervention_in_Libya_2011> accessed 28 November 2025. 6 ibid. 7 Alexandra T. Steele, ‘One Nation’s Humanitarian Intervention is Another’s Illegal Aggression: How to Govern International Responsibility in the Face of Civilian Suffering’ (Loyola of Los Angeles International and Comparative Law Review, 2012), Vol. 35, No. 1. 113.

core of this paper: at what point does the principle of state sovereignty yield to the responsibility to protect populations at risk?8 The Libyan protests were not isolated acts of dissent, but the culmination of decades of governmental violence, economic exclusion, and political repression. Long portraying itself as revolutionary and anti-imperialist, the Gaddafi administration upheld an inflexibly authoritarian internal structure that marginalised opposing tribes and areas while consolidating wealth from oil earnings. As repression intensified in early 2011, Libya changed from a place of political unrest to a humanitarian disaster, prompting the international community to confront the question at the heart of this paper. A. Political background To illustrate the background more clearly, it is worth mentioning the political background of the affairs between the United States and Libya in order to enable a thorough understanding of the factors contributing to the relevant intervention. Since Gaddafi’s socionationalist government transformed Libya in 1977, the American administration has made multiple attempts at toppling his regime. 9 The main reason therefore, is believed to be Gaddafi’s nationalist policies on oil production and export. 10 Since the end of the Cold War, US strategy has centred on preventing the emergence of any challenger capable of undermining its global influence.11 This approach includes discouraging other states from acquiring the economic or regional leverage that could translate into strategic power.12 In this context, Gaddafi’s handling of Libya’s oil sector posed a direct complication for Washington. Political analyst George Friedman argues that US interventions often aim less at achieving a positive outcome than at preventing unfavourable conditions from taking root, particularly stability that might empower a rival actor.13 From this perspective, Gaddafi’s tightening control over Libya’s oil revenues, combined with his inconsistent cooperation with international energy partners, risked enabling him to wield disproportionate regional influence. This behaviour ran counter to US interests in

Chilaka Chigozie, ‘NATO’s Intervention in Libya: A Humanitarian Success?’ (2013) 1(1) Net Journal of Social Sciences 5, <https://www.netjournals.org/z_NJSS_13_014.html> accessed 22 October 2025. 9 Matthew Robson, ‘From Humanitarian Intervention to Regime Change in Libya: Human Agency in the Production and Transformation of Global Security Assemblages’ (2024) 52 Millennium Journal of International Studies 384. 10 Boyan Nitzov, 'Libya’s Oil After Gaddafi' (25 August 2011) Atlantic Council <https://www.atlanticcouncil.org/blogs/new-atlanticist/libya-s-oil-after-gaddafi/> accessed 20 October 2025. 11 Gavan Gray ‘Japan’s Passive Support for US Wars: Examining the case for Humanitarian Intervention in Libya and Syria’ (Ritsumeikan International Affairs, 2011) Vol. 10, p. 289. 12 ibid. 13 ibid.

maintaining predictability and balance within the Middle East and North Africa (MENA). 14 It, therefore, becomes evident that Gaddafi’s oil policies threatened both US foreign policy priorities and broader national security concerns. His actions jeopardised market stability empowered an unreliable regional actor and undermined the strategic equilibrium the US sought to uphold in MENA. Publicly, the US president blamed the shift in relations between the two states to the need for America to protect (inter)national security from terrorism sponsored by Gaddafi.15 On 14 April 1986, Ronald Reagan ordered an airstrike mission in order to counter Libyan agents’ bombing of a West Berlin nightclub that killed three people, including a US serviceman.16 The next morning, 25 military aircrafts are launched over Libyan airspace, one of which was shot down by Libyan missiles, killing three American captains. 17 Operation El Dorado Canyon allegedly killed Gaddafi’s daughter as well, making a reconciliation between Libya and the United States impossible “so long as Reagan remained in the White House”. 18 The legality of the operation and the genuineness behind the American concern for terrorism, rather than Libya’s affordable supply of oil, have been extensively debated. While some argue that the 1986 bombing was arbitrary and served as an example for American impunity, others justify the killings by the principle of self-defence. There are multiple disagreements on the latter’s scope under Article 51 of the UN Charter, specifically, the permissibility of anticipatory self-defence and the threshold for proportionality in international law.19 Because these concepts are applied inconsistently in state practice, their interpretation in the Libyan case remains contested. 20 Notwithstanding that the United Nations condemn military retaliation instead of peaceful resolution methods and the high threshold for

Krass ‘Authority to Use Military Force in Libya’ (memorandum from the Office of Legal Counsel to the Attorney General, 1 April 2011) <https://www.justice.gov/sites/default/files/olc/opinions/2011/04/31/authoritymilitary-use-in-libya.pdf> accessed 30 November 2025, p.10. 15 Tom Bowman, ‘For Reagan, Gadhafi Was A Frustrating “Mad Dog”’ NRP (4 March 2011) <https://www.npr.org/2011/03/04/134228864/for-reagan-gadhafi-was-a-frustrating-mad-dog> accessed 20 October 2025. 16 Alan Glass, ‘U.S. planes bomb Libya, April 15, 1986’ Politico (14 April 2019) <https://www.politico.com/story/2019/04/15/reagan-bomb-libya-april-15-1986-1272788> accessed 25 October 2025. 17 ibid. 18 Alan Glass, ‘U.S. planes bomb Libya, April 15, 1986’ Politico (14 April 2019) <https://www.politico.com/story/2019/04/15/reagan-bomb-libya-april-15-1986-1272788> accessed 25 October 2025. 19 Yoram Dinstein ’War, Agression and Self-Defence' (Cambridge University Press, 2017) Chapter 5. 20 Christine Gray ’International Law and The Use of Force’ (Cambridge University Press, 2000) Chapter 3; Charter of The United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI art 51.

anticipatory international action, the concepts involved are abstract and interpretation is convoluted. It could therefore be discerned that following a comprehensive employment of economic sanctions against Libya, the US president was pursuing the objective of self-defence and acting in the best interest of the American people by attempting to prevent Libyan sponsorship in international terrorism. 21 Another crucial development in the back-and-forth between the United States and Libya is the Lockerbie case.22 In 1988 Pan Am Flight 103, while flying from London to New York blew up over Lockerbie, Scotland. Although Western media speculated that the bombing had been motivated by a Libyan desire for vengeance after the US aerial bombings of 15 April 1986, the Libyan official convicted on 270 counts of murder always maintained his innocence.23 The late 1980s marked a particularly volatile phase in the US-Libyan relations, as the decades that followed did little to eliminate the underlying mistrust. Through the 1990s, Libya remained under strict UN sanctions and bilateral tensions persisted as Gaddafi refused to extradite the Lockerbie suspects.24 Even after Libya accepted responsibility for the bombing in 2003 and abandoned its Weapons of Mass Destruction programme, steps which led to a gradual normalisation of relations, Washington continued to view Gaddafi as an unpredictable actor whose regime relied heavily on coercion and manipulation of its oil sector. 25 Diplomatic engagement in the 2000s was therefore pragmatic rather than harmonious and US concerns about Libya’s reliability, repression and strategic intentions never fully disappeared. 26 The continuity of suspicion helps explain why, during the 2011 uprising, many interpreted NATO’s intervention through the lens of a much longer history of antagonism. Relations between the United States and Libya can be summarised by a cycle of retribution with undeniable connection to the NATO intervention of Libya’s Arab Spring in 2011. Decades of animosity created a political prism through which many saw the military 21

Gregory Intoccia, (1987) American Bombing of Libya: An International Legal Analysis, 19 The Case Western Reserve Journal of International Law, 117, p 213. 22 Lockerbie Case (Libyan Arab Jamahiriya v. United Kingdom) [1992] ICJ Rep 3. 23 Timothy S. McNamara, (2018) ‘International law, NATO’s campaign to kill Gaddafi and the need for a new jus cogens’ 09(04) Beijing Law Review, 499. <https://doi.org/10.4236/blr.2018.94030> accessed 27 October 2025. 24 UNSC Res 883 (11 November 1993) UN Doc S/Res/1993. 25 Bruce W. Jentleson ‘Who “Won” Libya? The Force Diplomacy Debate and Its Implications for Theory and Policy’ (International Security, 2009) Vol. 30, No. 3. 26 Jason Pack (ed.) ‘The 2011 Libyan uprisings and the struggle for the post-Qadhafi future’ (British Politics, 2017).

operations in Libya as motivated by aspirations for a regime-change, rather than a humanitarian imperative under the Responsibility to Protect Doctrine. B. UNSC Resolutions (1970 &1973) On February 26, the United Nations Security Council (UNSC) adopted Resolution 1970 which (i) condemns Gaddafi’s violent crackdown of civilian revolts; (ii) expresses deep concern over (gross) violations of human rights including the right to life and the repression of peaceful demonstrators; (iii) calls for an immediate ceasefire and respect for humanitarian law; (iv) refers the situation in Libya to the International Criminal Court; and (v) issues an asset freeze and travel ban on Gaddafi and the members of his inner circle.27 However, after Resolution 1970 did not meet the UN’s objectives of deterrence in Libya, but rather fuelled the tensions between Gaddafi and the revolutionaries against his regime, a new document was drafted. On 17 March 2011, the UNSC under Chapter VII of the United Nations Charter, adopted Resolution 1973, which added to the previous document by authorising: (i) the protection of civilians and (ii) a no-fly zone over Libyan airspace ; and (iii) the Secretary General with the creation of a panel of experts to oversee the enforcement of the abovementioned measures. 28 Member states or their regional organizations are now encouraged: "To take all necessary measures (...) to protect civilians and civilian populated areas under threat of attack in the Libyan Arab Jamahiriya”.29 The language of Resolution 1973 marks a decisive escalation. In UNSC practice, the instruction to “take all necessary measures” constitutes an authorisation to use armed force, under Chapter VII of the UN Charter. 30 In other words, the Council was no longer limiting itself to sanctions or diplomatic pressure, it was formally permitting member states and regional organisations to conduct military operations, including airstrikes, to protect civilians from imminent harm.31 By invoking this formula under Chapter VII, the Council signalled that coercive military intervention was now considered both legally justified and operationally necessary. This formulation is central to understanding the gravity of Resolution 1973 and

UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970 para 1-17. UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973. 29 ibid para 4. 30 ibid; Charter of The United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI Chapter VII. 31 Christine Gray ’International Law and The Use of Force’ (Cambridge University Press, 2000) Chapter 4. 28

provides the foundation for assessing the legality of humanitarian intervention in the following paragraph. When discussing the legality of humanitarian interventions, it is crucial to underline whether peaceful means were genuinely pursued to begin with. Articles 2(3) and 2(4) of the UN Charter requires that all members shall “settle their international disputes by peaceful means” and “refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state”. 32 It has been argued that Resolution 1973 was premature in its authorisation of military means for peacekeeping. 33 The initial UNSC Resolution 1970 was given only three weeks to effectively prevent further violations of human rights.34 Pundits have shared their disapproval of the haste with which an authorisation of ‘all necessary means’ has been given to states or organisations.35 Although Article 42 of the UN Charter gives the Security Council such a mandate, the consequences of the measures Resolution 1970 put in place (ceasefire, arms embargo, asset freeze and travel ban) were not given sufficient time to be realized. 36 Consequently, many feel that Resolution 1973 was arbitrary in itself, and refuse to recognise the NATO intervention in Libya as legitimate in the first place. 37 II.

The Responsibility to Protect (R2P) Doctrine After the genocide in Rwanda shocked humanity in 1994, the United Nations took it

upon itself to make sure such a quagmire does not ensue again. The breakthrough came in 2001 when an initiative by the Canadian government moved the UN to establish the International Commission on Intervention and State Sovereignty (ICISS). The ICISS was tasked to draft a report on the need for a Responsibility to Protect (R2P).38 Four years later, the Doctrine has

Charter of The United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI, art. 2(3) j.o. 2(4). 33 Dina Mansour-Ille, ‘Libya’s Political Crisis: A Legacy of Failed Interventionism’ (Prisme, 11 June 2024) <https://prismeinitiative.org/publications/libyas-political-crisis-dina-mansour-ille/> accessed 29 October 2025. 34 Dina Mansour-Ille, ‘Libya’s Political Crisis: A Legacy of Failed Interventionism’ (Prisme, 11 June 2024) <https://prismeinitiative.org/publications/libyas-political-crisis-dina-mansour-ille/> accessed 29 October 2025. 35 David Rieff ’R2P, R.I.P.’ (New York Times, 7 November 2011) <https://www.nytimes.com/2011/11/08/opinion/r2p-rip.html> accessed 9 December 2025. 36 Charter of The United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI, art. 42. 37 Dina Mansour-Ille, ‘Libya’s Political Crisis: A Legacy of Failed Interventionism’ (Prisme, 11 June 2024) <https://prismeinitiative.org/publications/libyas-political-crisis-dina-mansour-ille/> accessed 29 October 2025. 38 ICISS, ‘The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty’ (Ottawa, December 2001) C2001-980327-3.

been realised as we know it today.39 Under the 2005 Summit Outcome Document , states no longer possess a “right to intervene” but instead bear a “responsibility to protect” 40 Such a shift in phrasing emphasised the obligation of individual states to protect the population within their sovereign territorial jurisdiction. 41 Notwithstanding its worldwide endorsement, however, the Responsibility to Protect builds on existing international law, such as the Genocide Convention and prohibitions against war crimes but lacks status as a treaty or codified obligation. 42 Albeit invoked in over 80 UN Security Council resolutions, it remains a framework for action rather than an enforceable law.43 The following sections and sub-sections are intended to familiarise the reader with the legal text of the R2P, the elements of the principle and their thresholds. A. Responsibility to prevent The first element to this obligation encompasses each state’s responsibility to protect their own populations from mass atrocities, specifically from war crimes, ethnic cleansing, and crimes against humanity and genocide as defined by the 1948 Genocide Convention. 44 The principle of affording citizens fair living conditions and a respect for their fundamental rights as enshrined in the Universal Declaration of Human Rights is deeply imbedded in international law and one that does not warrant our immediate attention or scrutiny.45 The controversiality of this Doctrine lies elsewhere, particularly in its second element. 46

Luke Glanville, ‘The Responsibility to Protect Beyond Borders’ (2012) 12(1) Human Rights Law Review 1 <http://hrlr.oxfordjournals.org/> accessed 22 October 2025. 40 UN GA, ‘World Summit Outcome’, A/60/1 (2005), paras 138-9. 41 Brian Omwoyo, ‘A Critical analysis of the status and application of the Responsibility to Protect Doctrine’ (2013). 42 ICISS, ‘The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty’ (Ottawa, December 2001) C2001-980327-3. 43 Australian Red Cross, International Humanitarian Law, and the Responsibility to Protect: A Handbook (Australian Red Cross 2011) <https://www.redcross.org.au/globalassets/cms/documents/about-us/ihlr2p-responsibility-to-protect.pdf> accessed 28 November 2025, 11-17. 44 ICISS, ‘The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty’ (Ottawa, December 2001) C2001-980327-3 para 4.19; Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277, art 2. 45 Brian Omwoyo, ‘A Critical analysis of the status and application of the Responsibility to Protect Doctrine’ (Academia Edu 14 January 2013) <https://www.academia.edu/11527338/> accessed 24 October 2025; Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR). 46 UN GA, ‘World Summit Outcome’, A/60/1 (2005) paras 138-9.

B. Responsibility to react The principle of the R2P has often been misunderstood as an authorisation for states to intervene unliterally in the affairs of other sovereign states. 47 For this reason, the principle has raised significant debate over the legitimacy and effectiveness of humanitarian intervention in protecting civilians.48

Several scholars note that some governments have invoked R2P

selectively or expansively, treating it as a licence for regime change or military involvement rather than as a framework that obliges the international community to act only when a state is demonstrably unable or unwilling to prevent mass atrocity crimes. 49 In reality, R2P requires a collective and carefully circumscribed response, not discretionary intervention. This confusion has fuelled extensive debates over the legitimacy, limits, and effectiveness of humanitarian intervention.50 As the ICISS explains: “The responsibility to protect implies above all else a responsibility to react to situations of compelling need for human protection. When preventive measures fail to resolve or contain the situation and when a state is unable or unwilling to redress the situation, then interventionary measures by other members of the broader community of states may be required. These coercive measures may include political, economic, or judicial measures, and only in extreme cases they may also include military action.”51 This clarification underlines that military force is a last resort and that R2P is designed to prioritise human protection rather than provide a mandate for power-driven intervention. Understanding this distinction is essential for assessing the legal and moral basis of the international response to Libya in 2011. 1. “Just cause”

ibid; Wamulume George Wamulume, ‘(In)Effectiveness If Military Intervention under the Responsibility to Protect (R2P): A Case Study of Libya’ (2022) 9 Open Access Library Journal 1 <https://doi.org/10.4236/oalib.1108688> accessed 30 October 2025. 48 ibid. 49 Alex J. Bellamy ‘Responsibility to Protect: The Global Effort to End Mass Atrocities’ (Cambridge University press, 2009). 50 ibid. 51 ICISS, ‘The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty’ (Ottawa, December 2001) C2001-980327-3 para 4.1.

In assessing the “compelling need for human protection” and the limit of “extreme cases”, the responsibility to react principle requires that the intervening state or organisation pursue a just cause.52 The threshold criterion necessitates a “large scale loss of life, (...) the product either of deliberate state action, or state neglect or inability to act, or a failed state situation.”53 The R2P Report further clarifies that a civil war would amount to satisfy the “large scale” criterion.54 What is more, the ICISS provides for an anticipatory military action as a possible measure to the aforementioned atrocities. 55 In its application of the just cause threshold to the 1999 case of Kosovo, the Commission has developed the following working questions to ease the conceptuality of the threshold: (i) Were the human rights abuses committed or threatened by the state authorities sufficiently serious to warrant outside involvement? (ii) Were all peaceful means of resolving the conflict fully explored? (iii) Did the way in which the intervention was carried out in fact worsen the very human rights situation it was trying to rectify? and (iv) Had the North Atlantic Treaty Organization (NATO) not intervened, would the state have been at the site of an ongoing, bloody, and destabilizing civil war? 56 It is important to note that R2P is not a legally binding law. It serves as a normative framework or guideline which shapes state behaviour and UN deliberations. While certain elements of R2P may reflect emerging customary international law, it is not formally codified, meaning compliance is politically encouraged rather than legally enforceable. Its threshold and criteria therefore function as ethical and policy standards rather than a strict legal obligation. 2. Precautionary criteria Under the responsibility to react and alongside the threshold for just cause, the ICISS lists five more criteria it designates as precautionary: (a) Right intention

ibid para 4.18. ibid para 4.19. 54 ICISS, ‘The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty’ (Ottawa, December 2001) C2001-980327-3 para 4.20. 55 ibid para 4.21. 56 ibid para 1.2; Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403. 53

According to the Commission’s Report, the primary purpose of the intervention must be to halt or avert human suffering. Although eliminating a regime's ability to cause harm to its own citizens may be necessary to fulfil the purpose of protection, overthrowing a regime is not a valid objective in and of itself. What is necessary to achieve the purpose of intervention will vary from case to case. 57 (b) Last resort Every non-military and diplomatic option for averting the humanitarian crisis or finding a peaceful solution has to be scrutinised. Only once the duty to prevent has been completely fulfilled, can the duty to respond (using armed force) be justified. This does not imply that all of these options have to have been attempted and failed - frequently, there will not be enough time for the process to succeed on its own. However, it does require that there be good reason to think that, under all the circumstances, the measure would not have been successful if it had been genuinely pursued.58 If the crisis in question involves a conflict between a state party and an insurgent minority, the parties must be induced to negotiate. 59 (c) Proportional means While the scale, duration and intensity of the planned military intervention should be the minimum necessary to secure the objective in question, the means have to be commensurate with the ends. The extent of the first provocation is a crucial factor to take into account when evaluating proportionality. More precisely, this means that any impact on the political system of the state should be restricted to what is absolutely required to achieve the intervention's goal.60 It should go without saying that in these circumstances, all international humanitarian law regulations must be closely adhered to. 61 (d) Reasonable prospects

ICISS, ‘The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty’ (Ottawa, December 2001) C2001-980327-3 para 4.33. 58 ICISS, ‘The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty’ (Ottawa, December 2001) C2001-980327-3 para 4.37. 59 ibid para 4.38. 60 ibid para 4.39. 61 ibid para 4.40.

Military action can only be justified if it stands a reasonable chance of success in achieving an already valid humanitarian objective. Military intervention is not justified if actual protection cannot be achieved, or if the consequences of embarking upon the intervention are likely to be worse than if there is no action at all. In particular, a military action for limited human protection purposes cannot be justified if the process triggers a larger regional conflagration. In such cases coercive military action is no longer justified by the R2P Doctrine.62 C. Responsibility to rebuild The Responsibility to Protect principle extends influence over the aftermath of the interventionary conclusion in addition to encompassing nations' obligations to prevent and respond.63 UN Secretary-General Kofi Annan defines peace-building as actions undertaken at the end of a conflict to consolidate peace and reduce the risk of a resumption of armed conflict. 64 In his eyes, consolidation of peace in the reverberation of conflict requires creating conditions for reconciliation, reconstruction, and recovery.65 An integrated peace building effort is needed to address the various factors which have caused or are threatening a conflict. Peace building may involve (i) the creation or strengthening of national institutions; (ii) monitoring elections; (iii) promoting human rights; (iv) providing affected civilians or combatants with reintegration and rehabilitation programmes; and (v) creating conditions for resumed development. 66 In practice, the R2P Report owes reconstruction to the efforts of ground-level actors, rather than of the judiciary, or state-level institutions.67 Sustainable reconciliation is achievable when former armed adversaries join hands in rebuilding their community by creating reasonable living and job conditions, repairing infrastructure, rebuilding housing, planting, and harvesting.68

ICISS, ‘The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty’ (Ottawa, December 2001) C2001-980327-3 para 4.41. 63 ibid paras 5.1-5.3. 64 UNGA Res 71/315 Implementation of the recommendations contained in the report of the Secretary-General on the causes of conflict and the promotion of durable peace and sustainable development in Africa (24 July 2017) UN Doc A/RES/71/315. 65 ibid. 66 ibid. 67 ICISS, ‘The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty’ (Ottawa, December 2001) C2001-980327-3. 68 ibid para 5.4.

D. Deduction The status of the intervention performed in Libya is deeply contested. The ICISS Report's R2P framework directly informed UNSC Resolutions 1970 and 1973, authorizing NATO's Operation Unified Protector to protect Libyan civilians from threats issued by the Gaddafi regime.69 In Libya, R2P's ‘just cause’ threshold was met by large-scale atrocities, thereby enabling anticipatory action. Yet, NATO's expansion to regime change exceeded ‘right intention’ and ‘proportionality’ and failed to fulfil the ‘responsibility to rebuild’. This selective application highlighted R2P's normative power as a guideline, rather than a binding law. Years later, justifications for military intervention are still a vast and abstract topic, despite the ICISS Report offering suggestions on how the concept should be applied. There is still room for powerful states to use military action, pre-emptively intervene in an already fragile sovereign, and then withdraw, leaving behind a security vacuum that could exacerbate the situation, reminiscent of the 2011 situation in Libya.70 III.

NATO’s 2011 intervention in Libya On 23 March 2011, acting pursuant to Resolution 1973 and aimed at deterring Gaddafi's

military operations, NATO launched a military operation called Odyssey Dawn, led by the US, France, and the United Kingdom. 71 On 29 March 2011, NATO hosted a Council meeting in London on the situation in Libya. The Chair Foreign Secretary (and UK Foreign Secretary), with the consent of all 28 members of the Organisation, draws up the implementation of UNSC Resolutions 1970 and 1973, underlining the importance of swift action. Operation Unified Protector is now in full effect and with the broad support of all allied states. 72 However, neither the Chair’s meeting notes nor the NATO press release from the day before the meeting, reveal any details on concrete actions and guidelines the personnel on the ground were expected to follow.73 What is more, on numerous occasions, Lieutenant General 69

ICISS, ‘The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty’ (Ottawa, December 2001) C2001-980327-3; UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973, Preamble; UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970, Preamble. 70 NATO, ‘Press briefing on events related to Libya’ (North Atlantic Treaty Organization, 28 March 2011) <https://www.nato.int/en/news-and-events/events/transcripts/2011/03/28/press-briefing-on-events-related-tolibya?selectedLocale=> accessed 30 October 2025. 71 ibid. 72 ibid. 73 NATO, ‘Press briefing on events related to Libya’ (North Atlantic Treaty Organization, 28 March 2011) <https://www.nato.int/en/news-and-events/events/transcripts/2011/03/28/press-briefing-on-events-related-tolibya?selectedLocale=> accessed 30 October 2025; NATO, ‘Press briefing’ (North Atlantic Treaty Organization,

Charles Bouchard refuses to provide any. In one instance, he says: “With regards to rules of engagement, we do not discuss them. It’s akin to asking a football coach to give you his playbook, so we will not discuss operational details, nor rules of engagement.”74 Reluctance to inform the press and citizens about what the extent of NATO’s conduct for the ‘protection of civilians in Libya’ makes the discernment of legality particularly challenging. As mentioned, the ICISS Report on the application and scope of the R2P Doctrine explicitly excludes a regime overthrow as a legitimate objective for intervention. 75 This adaptation raises the question of how the existence of such objective could be proven, since it could easily be concealed with another and more legitimate goal. Accordingly, in its Nicaragua judgment, the International Court of Justice (ICJ) underlined that it is not necessary to establish whether the intention to secure a change of governmental policies went so far as to be equated with an endeavour to unseat Gaddafi. 76 The ICJ went on to elaborate that the United States had demonstrated such an intention by supporting (financially, militarily, and by training) the insurgent group in Nicaragua, whose goal was to coerce and overthrow the state’s government.77 This example underscores the tension between the normative aim of R2P, which is to protect populations from mass atrocities, and the established principle of non-intervention in domestic affairs. While R2P allows coercive action in extreme cases to protect civilians, it strictly prohibits interventions aimed at regime change as the primary objective. 78 The Nicaragua case illustrates the challenges in distinguishing legitimate humanitarian intervention from prohibited interference in a state’s sovereignty.79 It demonstrates why R2P emphasizes intent, proportionality, and last resort: these criteria help ensure that military action remains focused on protection rather than political objectives, preserving the integrity of the principle of non-intervention. Although contested, NATO’s inclination towards the insurgent forces in Libya has been argued by more than one scholar of international relations and security studies. 80 Civilian

24 March 2011) <https://www.nato.int/en/news-and-events/events/transcripts/2011/03/25/pressbriefing?selectedLocale=> accessed 30 October 2025. 74 ibid. 75 ICISS, The Responsibility to Protect (International Development Research Centre 2001) para 4.33. 76 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14 para 241. 77 ibid. 78 ICISS, The Responsibility to Protect (International Development Research Centre 2001) para 4.33. 79 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America) (Merits) [1986] ICJ Rep 14. 80 Chilaka Chigozie, ‘NATO’s Intervention in Libya: A Humanitarian Success?’ (2013) 1(1) Net Journal of Social Sciences 5, <https://www.netjournals.org/z_NJSS_13_014.html> accessed 22 October 2025.

casualties during the months-long unrest were not caused only by the regime of Gaddafi. The 2012 Reports of the Human Rights Watch revealed that former rebels were torturing innocent citizens based on their alleged support to the former regime. 81 However, NATO coalition forces were not observed to be ‘protecting civilians’ from the rebel forces in the same manner and intensity as they were from Gaddafi’s soldiers.82 The main premise is that NATO’s reluctance to react against the Libyan revolutionaries in comparison to Gaddafi’s military, suggests an alignment towards the attempts of overthrowing the repressive regime. 83 In this line of thought, selective application protection of civilians contravenes the UNSC instruction for the use of “all necessary means” to achieve the Operation’s just cause. 84 Another argument in support of this position is concerned with the culmination of Operation Unified Protector. On 20 October 2011, Gaddafi was violently killed by revolting groups outside the city of Sirte. According to reports, American and French warplanes had prevented the head of state’s attempted escape. Gaddafi’s accompanying vehicles were forced to scatter, he found himself suddenly ambushed, beaten, and killed by opposition fighters. Following the violent death of Gaddafi, NATO put an end to targeting and mission Unified Protector officially ended on 31 October. While it is possible that Gaddafi’s death provided for the insurgent groups to accept victory and settle down, it is not unreasonable to come to the other probable conclusion. Once Gaddafi had fallen, the coalition forces’ concealed yet actual objective was achieved. 85 The opinion that NATO’s intervention was not purely motivated by the Responsibility To Protect Doctrine has found believers across fields of study. Political Science Ph. D. Alan Kuperman has gone so far as to state that the intervention in Libya only exacerbated the unrest in the Northern African state and did not, in fact contribute to the saviour of any civilian life. He argues that by the time the North Atlantic Treaty Organisation launched its military operation in Libya, Gaddafi had re-gained control over the state and exiled revolutionary groups to neighbouring Egypt. On this note, Dr. Kuperman concludes that the reason behind international condemnation was the failure of the insurgent movement, rather than the 81

UN Human Rights Council, Report of the International Commission of Inquiry on Libya (8 March 2012) UN Doc A/HRC/19/68 para 43. 82 UN Human Rights Council, Report of the International Commission of Inquiry on Libya (8 March 2012) UN Doc A/HRC/19/68 para 122. 83 ibid paras 83-89. 84 UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973 para 4. 85 Fahim K, Shadid A and Gladstone R, ‘Qaddafi Is Killed as Libyan Forces Take Surt’ The New York Times (20 October 2011) <https://www.nytimes.com/2011/10/21/world/africa/qaddafi-is-killed-as-libyan-forces-takesurt.html> accessed 30 October 2025.

violations of human rights allegedly committed by Colonel Gaddafi. In return, inside involvement only fuelled a conflict that was dwindling down.86 In summary, the genuine objective of NATO’s 2011 Operation Unified Protector in Libya is a challenged prerequisite to the legitimacy of the mission as a whole. Information on specific guidelines and NATO rules of engagement is scarce, while independent reports are ambiguous. As a result, it would be up to the International Court of Justice (upon request by the UN General Assembly) to determine the lawfulness of the undertaking and down to the International Criminal Court to settle on crimes against humanity committed against the Libyan people.87 IV.

The way forward and the Right to Be Protected A faulty application of the Responsibility To Protect doctrine in an international

organisation’ attempt to unseat a dictatorial regime sets a problematic precedent for future mandates to protect citizens. Scholars like Timothy McNamara have therefore suggested that the future of international humanitarian law depends on a reform of the R2P principle. 88 Instead of a State’s right to intervene when a particular interest compels them to take such initiative, a citizen’s humanitarian right would remove the need for a political concern. Like any UN Charter-recognised right, the Right To Be Protected (R2BP) would be unconditional and peremptory (a jus cogens norm that could not be disregarded or deviated from). “The vested interest of the UN Members would not be a relevant consideration as an Independent UN Commissioner would issue Continuous Reports, specifying whether the humanitarian thresholds in the Monitored Zone had been triggered or not,” suggests McNamara.89

Alan J Kuperman, ‘Lessons from Libya: How Not to Intervene’ (Belfer Center for Science and International Affairs, Harvard Kennedy School, September 2013) < https://www.belfercenter.org/publication/lessons-libyahow-not-intervene> accessed 30 October 2025. 87 Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo (Advisory Opinion) [2010] ICJ Rep 403; Charter of The United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI art 96(1); UNSC Res 1970 (26 February 2011) UN Doc S/RES/1970; Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) art 5. 88 Timothy S. McNamara, (2018) ‘International law, NATO’s campaign to kill Gaddafi and the need for a new jus cogens’ 09(04) Beijing Law Review, 499 <https://doi.org/10.4236/blr.2018.94030> accessed 27 October 2025. 89 Timothy S. McNamara, (2018) ‘International law, NATO’s campaign to kill Gaddafi and the need for a new jus cogens’ 09(04) Beijing Law Review, 499 <https://doi.org/10.4236/blr.2018.94030> accessed 27 October 2025 521.

In terms of drafting and implementation, the political scientist calls on the Independent UN Commissioner to establish the relevant standards and how Member States would divide the responsibility for safeguarding the most vulnerable people on the planet. 90 V.

Conclusion “Humanitarian intervention has been controversial both when it happens, and when it

has failed to happen.”.91 In any event, United Nations Security Council Resolution 1973 would prevail over the R2P doctrine, making the authorisation of a regional organisation legitimate notwithstanding principles such as just cause.92 However, legality and legitimacy are not interchangeable. The 2011 NATO intervention in Libya, while seemingly rooted in international law through the Security Council’s mandate, revealed the structural and moral fragility of the Responsibility to Protect (R2P) Doctrine when the interests of powerful states start competing. What began as a humanitarian mission to protect civilians under threat of state violence gradually evolved into a campaign that facilitated regime change, a purpose explicitly excluded under the ICISS framework. In its roots, the R2P doctrine was drafted as a safeguard against mass atrocities, a commitment to prevent another Rwanda or Srebrenica. However, in Libya, the Doctrine was stretched beyond its intended scope. The Security Council’s authorisation of “all necessary measures” under Resolution 1973 were interpreted with excessive liberty by NATO, whose operations increasingly targeted the leadership of the Gaddafi regime. 93 Secretary-General Kofi Annan once warned that “if the collective conscience of humanity cannot find in the United Nations its greatest tribune, there is a grave danger that it will look elsewhere for peace and for justice.”94 His statement encapsulates the central dilemma of Libya. The intervention may have halted immediate bloodshed, but it also created a prolonged power vacuum that allowed extremist groups and rival militias to thrive. Military engagement in the name of humanitarianism must be demonstrably proportionate, necessary, and guided by reasonable prospects of success. In Libya, these

ibid. ICISS, The Responsibility to Protect (International Development Research Centre 2001) para 1.1. 92 ibid para 4.26. 93 UNSC Res 1973 (17 March 2011) UN Doc S/RES/1973 para 4. 94 UN Department of Public Information, ‘The question of intervention’ <https://digitallibrary.un.org/record/406200?ln=en> accessed 27 October 2025. 91

(1999)

precautionary principles were not applied sufficiently. The “last resort” condition was not satisfied, given that diplomatic and economic measures under Resolution 1970 had been afforded merely three weeks to take effect. Nor was proportionality observed, as NATO’s extended bombardment campaign contributed more to regime collapse rather than civilian protection. In effect, the intervention violated the norms it claimed to uphold. While averting immediate atrocities in Benghazi, actions prolonged the conflict, caused thousands more deaths, and neglected rebuild efforts, leaving enduring instability. This case underscores R2P's vulnerability as a non-binding norm to geopolitical agendas, eroding trust in humanitarian interventions and prompting calls for stricter enforcement mechanisms. Indeed, since military intervention involves a form of military action significantly more narrowly focused and targeted than all-out warfighting, an argument can be made that even higher standards should apply in these cases.95 Ultimately, NATO’s 2011 operation in Libya should serve as both a lesson and a warning. The intervention’s ambiguous legality, lack of transparency, and neglect of postconflict responsibilities undermined the credibility of R2P and set a precedent that military intervention can be justified under humanitarian pretences. In the haunting words of Hillary Clinton, “We came, we saw, he died,” the Libyan intervention revealed the irony of humanitarianism turned political. 96

ICISS, The Responsibility to Protect (International Development Research Centre 2001) para 4.40. Paul Craig Roberts, ‘Hillary’s War Crime’ Institute for political economy (20 October 2016) <https://www.globalresearch.ca/hillarys-war-crime-the-murder-of-muammar-gaddafi-we-came-we-saw-hedied/5552094> accessed 1 November 2025. 96

Mandate Limitations and Their Impact on the Effectiveness of UNPROFOR in Srebrenica: Implications for Strengthening the United Nations’ Humanitarian Protection Capacity By Melisa Yusufova* Abstract The fall of Srebrenica in July 1995 exposed the profound limitations of the United Nations Protection Force (UNPROFOR) and the consequences of a peacekeeping mandate defined by ambiguity, political compromise, and institutional inertia. This note examines how restrictive mandates, the misuse of veto power, and the conflation of impartiality with inaction weakened the UN’s capacity to protect civilians and uphold its founding principles. It argues that the failures in Srebrenica were not merely operational but structural, rooted in the concentration of decision-making power within the Security Council. Building on this analysis, the paper proposes four reforms: democratizing Security Council authority, codifying intervention thresholds for mass atrocity crimes, clarifying and narrowing mandate objectives, and enhancing collaboration with regional organizations. Together, these measures aim to strengthen the UN’s humanitarian protection capacity, restore institutional credibility, and prevent the recurrence of such failures in future peacekeeping operations.

* L.L.B. Candidate, International and European Law Programme, The Hague University of Applied Sciences.

I. Introduction The Socialist Federal Republic of Yugoslavia (SFRY) was established in 1946 as a federation of six republics: Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia, and Slovenia.1 The Bosnian War (1992-95) began after the breakup of Yugoslavia in 1991, following the declarations of independence by Slovenia and Croatia on 25 June 1991. 2 In 1992 Bosnia and Herzegovina followed, with a referendum resulting in a clear majority supporting Bosnian independence, despite a boycott by most Bosnian Serbs. 3 Bosnia and Herzegovina’s independence was recognized internationally in April 1992, with Alija Izetbegović as president.4 Prior to the onset of conflict, Bosnia and Herzegovina functioned as a multi-ethnic republic within the former Yugoslavia, governed jointly and predominantly populated by Bosnian Muslims (Bosniaks) (43 percent), Bosnian Serbs (33 percent), and Bosnian Croats (17 percent).5 II. Framing the Yugoslavia Question: The road to the Srebrenica massacre In response to the declaration and recognition of independence, Serb leaders, backed by the Yugoslav People’s Army and Serbia under Slobodan Milošević’s presidency, declared a separate republic within Bosnia and sought territorial control. 6 With superior military resources, Bosnian Serb forces secured over sixty percent of the country and carried out systematic persecution of non-Serb communities.7 The conflict quickly revealed deep ethnic divisions within Bosnia and Herzegovina. Bosniaks, representing the largest segment of the population, primarily served in the Army of the Republic of Bosnia and Herzegovina (ARBiH).8 On the opposing side, Bosnian Serbs organized the Army of Republika Srpska (BSA), maintaining close ties with both the Yugoslav army and the Federal Republic of Yugoslavia.9 In Eastern Bosnia, where Srebrenica lies, Bosnian Serb forces primarily targeted

Office of the Historian, United States Department of State, “A Guide to the United States’ History of Recognition, Diplomatic, and Consular Relations, by Country: Kingdom of Serbia/Yugoslavia” (Office of the Historian) <https://history.state.gov/countries/kingdom-of-yugoslavia> accessed 22 October 2025. 2 UNGA, Report of the Secretary-General pursuant to General Assembly resolution 53/35: The fall of Srebrenica (15 November 1999) UN Doc A/54/549, para 10 <https://docs.un.org/en/A/54/549 accessed> 22 October 2025. 3 International Criminal Tribunal for the former Yugoslavia (ICTY), The Conflicts: Bosnia and Herzegovina, 1992–1995 <https://www.icty.org/en/about/what-former-yugoslavia/conflicts> accessed 22 October 2025. 4 UNGA, The Fall of Srebrenica, para 15 (n 2). 5 ICTY, The Conflicts: Bosnia and Herzegovina, 1992–1995 (n 3). 6 ibid. 7 ibid. 8 UNGA, The Fall of Srebrenica, para 17 (n 2). 9 UNGA, The Fall of Srebrenica, para 18 (n 2).

Bosnian Muslims with violence as they sought to establish ethnically homogeneous territories.10 This broader campaign of violence set the stage for the genocide in Srebrenica. 11 The fall of Srebrenica in July 1995, where more than 8,000 Bosniak men and boys were killed and which has since been recognized as genocide, is a central focus of this paper. 12 This note examines which mandate limitations affected UNPROFOR’s effectiveness in Srebrenica and explores potential changes within the UN to strengthen its humanitarian protection capacity. This Note is structured in three main sections. The first section analyzes the mandate of the UNPROFOR operation, the second section examines the flaws within this mandate, and finally, concludes by providing recommendations for future peacekeeping operations and addresses the underlying issues within the United Nations. III. Srebrenica before the massacre Before the war, Srebrenica was home to nearly 40,000 people, remaining one of the few Bosnian Muslim enclaves that survived the 1992 Serbian assault. 13 The United Nations declared it a “safe area” in 1993, blocking the Serbian efforts to secure the strategically vital Drina River valley separating Bosnia from Serbia. 14 The United Nations framed its intervention in former Yugoslavia as an effort to keep the conflict under control, support humanitarian relief for civilians, and prevent new outbreaks of violence. 15 What ultimately led to declaring Srebrenica a safe area was the moral and political pressure on the Security Council caused by the intervention of UNPROFOR Commander General Philippe Morillon in March 1993. 16 After forcing his way through a Serb blockade and entering Srebrenica, he publicly declared 10

United Nations, “About the Srebrenica Genocide Commemoration Day” (UN Observances) <https://www.un.org/en/observances/srebrenica-genocide-commemoration-day/about> accessed 22 October 2025. 11 ibid. 12 ICTY, The Conflicts: Bosnia and Herzegovina, 1992–1995 (n 3); Prosecutor v Radislav Krstić (Appeals Judgment) IT-98-33-A (ICTY, 19 April 2004) para 37 <https://www.icty.org/x/cases/krstic/acjug/en/krsaj040419e.pdf> accessed 22 October 2025; M Dobbs, ‘General Mladić in The Hague’ (2012) (194) Foreign Policy 100 <http://www.jstor.org/stable/23242800> accessed 23 September 2025. 13 UNSC Res 819 (16 April 1993) UN Doc S/RES/819, para 1. 14 UN Department of Public Information, The United Nations and the Situation in the Former Yugoslavia (New York, UN DPI, 15 March 1994) p 12. 13 M Dobbs, ‘General Mladić in The Hague’ (2012) (194) Foreign Policy 100 <http://www.jstor.org/stable/23242800> accessed 23 September 2025. 15 UNSC Res 819 (16 April 1993) UN Doc S/RES/819, para 1. 16 UN Department of Public Information, The United Nations and the Situation in the Former Yugoslavia (New York, UN DPI, 15 March 1994) p 12. 17 Amos Chapple, ‘25 Years Ago: The Srebrenica Genocide’ Radio Free Europe/Radio Liberty (10 July 2020) <https://www.rferl.org/a/in-photos-the-srebrenica-genocide-25-years-on/30719711.html> accessed 7 October 2025.

the area under United Nations protection. 17 Resolution 819 which initially declared Srebrenica as a ‘safe area’ was followed by the Demilitarization Agreement of 1993 under which Bosnian Serb forces agreed not to overrun the enclave under the condition that Bosniak fighters surrender their weapons. 18 IV. The Peacekeepers on the Ground: UNPROFOR’s Anatomy The United Nations Protection Force (UNPROFOR) was deployed under the demilitarization agreement and the corresponding Security Council resolution to oversee the disarmament of Srebrenica. 19 UNPROFOR troops began arriving in April 1993, rotating every six months.20 The force remained lightly armed and never exceeded 600 soldiers within the enclave.21 By virtue of the1993 Demilitarization Agreement, Bosniak forces in Srebrenica operated with limited training and minimal equipment. 22 Although their number ranged between 3,000-4,000 men organized into twenty-eight divisions, they lacked heavy munition, besides a few anti-tank missiles and light mortars that had been smuggled, however, inadequate instruction prevented their usage.23 In stark contrast, Bosnian Serb forces surrounding the enclave held a clear military advantage with around 1,000-2,000 well-equipped soldiers from the Drina Corps who were tasked to maintain the siege, supported by tanks, artillery, and armored vehicles. 24 This imbalance left the enclave virtually indefensible without external support. In January 1995, a Dutch battalion, known as DutchBat, assumed command of the area. 25 Two months later, Radovan Karadžić, President and Supreme Commander of the armed forces of Republika Srpska, issued Directive 7, ordering Bosnian Serb forces to expel the Muslim population from Srebrenica, a directive that preceded the atrocities of July 1995.26 Directive 7 delineated the

ibid. Agreement for the Demilitarization of Srebrenica (17 April 1993), para 4 <https://peacemaker.un.org/sites/default/files/document/files/2024/05/ba930418agreement20on20the20demilitar ization20of20srebrenica.pdf > accessed 7 October 2025. 20 International Residual Mechanism for Criminal Tribunals, “Srebrenica Timeline” (IRMCT) <https://www.irmct.org/specials/srebrenica/timeline/en/> accessed 8 October 2025. 21 ibid. 22 ibid. 23 UNGA, The Fall of Srebrenica, para 230 (n 2). 24 ibid. 25 ibid. 26 IRMCT, ‘Srebrenica Timeline’ (n 19). 27 ibid. 19

long-term strategy of the VRS, which, as stated, sought to create “an unbearable situation of total insecurity with no hope of further survival or life for the inhabitants of both enclaves. 27 V. A Chapter “VI-and-a-Half” paradox: analysis of the operational paralysis At the outset of the conflict, the United Nations (UN) refrained from intervention, characterizing the violence as an internal civil war. Article 2(7) of the UN Charter limits the organization’s authority to intervene in matters within a state’s domestic jurisdiction, which influenced the UN’s initial reluctance. 28 As hostilities escalated, international attention shifted to the war in Croatia, resulting in Bosnia-Herzegovina receiving limited early diplomatic and operational engagement. 29 The UN was unprepared for the rapid escalation of the Bosnian crisis and its subsequent regional impact. 30 The United Nations' reliance on Cold War-era perceptions was a primary determinant in its failure during the Bosnian war. 31 The organization approached the conflict with unwarranted confidence, presuming that strategies effective during the Cold War remained applicable. 32 However, the character of conflict was fundamentally different. Most post-Cold War conflicts were internal rather than interstate, yet the United Nations continued to employ mechanisms intended for state-to-state disputes.33 This disconnects between the organization's established framework and the evolving realities of intra-state warfare contributed to its ineffective response in Bosnia. 34 This systemic issue contributed to the emergence of multiple internal flaws within the UNPROFOR mandate. This section examines the primary weaknesses of the UNPROFOR mandate and assesses how these flaws undermined the mission’s ability to protect civilians. A. Peacekeeping between blurred lines The UN Charter does not refer to peacekeeping per se, which is a later UN ‘invention' established by the UNSC acting under its obligations of the United Nations Charter. Peacekeeping is broadly understood as a means to encourage and preserve solid grounds for

Prosecutor v Vidoje Blagojević and Dragan Jokić (Judgment) ICTY Trial Chamber I, Case No IT-02-60-T, 17 January 2005, para 106. 29 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI, art 2(7). 30 Noman Sattar and Louise Liu, ‘The UN Role in Bosnia: Mandate, Means, and Impartiality in Peace-Keeping’ (1996) 18 Strategic Studies, p 49 <https://www.jstor.org/stable/45182216> accessed 28 September 2025. 31 ibid. 32 Sattar and Liu, ‘The UN Role in Bosnia: Mandate, Means, and Impartiality in Peace-Keeping’ (n 29) p 53. 33 ibid. 34 ibid. 35 ibid.

negotiations.35 As expressed by the UN, this proposition relies on the consent and cooperation of the parties involved. 36 Accordingly, a lack of consent from the parties causes the operation shifts towards peace enforcement the moment the use of force is authorized by the Security Council.37 Based on the UN’s mandate structure, UNPROFOR operated between two conflicting frameworks, one being traditional peacekeeping and the other peace enforcement. 38 The initial mandate relied on consent, impartiality, and limited use of force which was extended over time by authorization of use of force in self-defense under UNSC Resolution 836.39 Originally, the mandate of UNPROFOR was to provide humanitarian assistance, demilitarize the area and help with the enforcement of “safe areas”. The blurred boundary between enforcement and peacekeeping complicated the legal and operational dimensions of the mandate, leaving the peacekeepers uncertain about what actions they were permitted to take and what outcomes they were expected to achieve. The UN expected peacekeepers to resolve a complex problem that required more than limited political and military engagement. The Bosnian intervention lacked strategic coherence because the military objectives were not clearly defined, achievable, nor sustainable. The UN expanded the UNPROFOR mandate more than a dozen times through various UNSC Resolutions, including 758, 816, 819, 824, 836, and 908.40 This frequent expansion revealed confusion within the UN about how to address the conflict, which further disconnected the mission from the realities on the ground. The objectives set by these resolutions did not prove achievable or decisive, nor did they fit the political context well enough to stand as important goals on their own. B. The Security Council paralyzed As estimated by the UN Secretariat, implementing the ‘safe area’ concept would require approximately 32,000 additional troops. 41 Despite this assessment, during Security Council

UN Department of Public Information, The Blue Helmets: A Review of United Nations Peace-keeping (New York, United Nations 1990), p xix. 37 ibid. 38 ibid. 39 John F Hillen, Killing with Kindness: The UN Peacekeeping Mission in Bosnia (Cato Institute 1995), p 2. 39 Ibid; UNSC Res 836 (4 June 1993) UN Doc S/RES/836, 3, para 9. 40 UNSC Res 816 (31 March 1993) UN Doc S/RES/816 (1993); UNSC Res 819 (16 April 1993) UN Doc S/RES/819 (1993); UNSC Res 824 (6 May 1993) UN Doc S/RES/824 (1993); UNSC Res 836 (4 June 1993) UN Doc S/RES/836 (1993); UNSC Res 908 (31 March 1994) UN Doc S/RES/908 (1994). 42 UNGA, The Fall of Srebrenica, para 94-95 (n 2).

deliberations, none of the principal powers offered to contribute troops.42 This unwillingness revealed a structural flaw within the mandate. Political divisions among the major powers undermined any prospect of a unified response to one of the most urgent humanitarian crises of the decade. The major powers within the United Nations failed to address the underlying political causes of the Bosnian conflict, instead employing humanitarian intervention as a replacement for substantive diplomatic engagement. By utilizing relief efforts to obscure their reluctance to resolve fundamental issues, these actors transformed humanitarian action into a compensatory measure for political shortcomings. Consequently, the absence of a coherent political strategy hindered the formulation of achievable military objectives. 43 The Security Council, entrusted with maintaining international peace and security, drifted into institutional inertia. By portraying inaction as a safety measure for protection of UNPROFOR troops, the Council overlooked the far greater danger confronting the safety of thousands of civilians in Srebrenica, effectively distancing itself from the UN’s fundamental responsibility to protect those under threat. 44 This decision was widely perceived as a shift in peacekeeping purpose, from protecting civilians to safeguarding the institution itself, and shaped much of the international criticism that followed. The deeper cause of this institutional hesitation lies in the Security Council’s internal mechanism where national interests shape every decision. The United States and other major powers, holding decisive influence within the Council, saw no direct strategic interest in Bosnia and therefore resisted any shift from peacekeeping to peace enforcement. 45 Although extensive research identifies key elements for peacekeeping success, the United Nations adopted an approach in Bosnia that was inconsistent with these established findings. Recent studies on peacekeeping effectiveness indicate that both the capacity, defined as the number of personnel deployed, and the constitution, referring to the type of personnel deployed, are critical when determining operational success.46 Deployments involving wellequipped and trained forces are associated with reduced civilian casualties, improved cooperation between combatants and peacekeepers, and a lower likelihood of conflict spillover

43 44

ibid. John F Hillen, Killing with Kindness: The UN Peacekeeping Mission in Bosnia (Cato Institute 1995), p 4, para

3. 45

Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI, art 1. Sheila Zulfiqar Ahmad, ‘The UN’s Role in the Bosnian Crisis: A Critique’ (1998) 51 Pakistan Horizon 83, p 9091, <https://www.jstor.org/stable/41394460> accessed 8 October 2025. 47 Lisa Hultman, Jacob Kathman and Megan Shannon, ‘Beyond Keeping Peace: United Nations Effectiveness in the Midst of Fighting’ (2014) 108 American Political Science Review, p 740 <https://www.jstor.org/stable/44154190> accessed 6 October 2025. 46

across borders.47 Such missions also demonstrate greater consistency in achieving mandate objectives.48 In Bosnia, the limitations in UNPROFOR’s capacity and structure reflected broader weaknesses in its mandate. These shortcomings directly undermined the mission’s ability to prevent atrocities and fulfill its protective mandate. C. Symbolic NATO involvement and the mirage of action The mandate of UNPROFOR was non-coercive, however, the Security Council relied on a temporary measure to create the necessary conditions for negotiation between the parties which led them to authorization of limited NATO air operations.49 Resolution 836 authorized UNPROFOR troops to use force in self-defense, restricting their role to deterring, instead of repelling attacks on designated safe areas.50 NATO air power was authorized solely to provide support to peacekeeping forces.51 This extension of mandate further showcases the clash between the restricted initial mandate of the troops in support of their impartiality in the war zone. The report by Secretary-General Kofi Annan on the Srebrenica massacre indicates that Dutchbat made repeated requests for NATO air support, which UN officials consistently denied.52 After UNPROFOR eventually authorized limited action, NATO aircraft conducted a strike that destroyed a single Bosnian Serb tank. 53 After aircrafts bombed Bosnian Serbs ammunition depots, the Serb forces responded by taking hostages of peacekeepers to deter further airstrikes.54 A. Revisiting the Central Issue Subsequently, an additional flaw in the UN’s mandate was that peacekeepers were seen as siding with one party to the conflict which ultimately gave rise to more military casualties as it infuriated the Serbs. Effective use of air support became impossible because Serbian forces employed a tactic of holding troops hostage. This further constrained the United Nations, which struggled to develop an effective response. Soldiers were instructed to prioritize their own safety, reflecting the UN's focus on personnel protection rather than adequately addressing the

ibid. ibid. 49 UN Department of Public Information, Peacekeeping Notes Update (May 1994), p 56; US Air Force Europe South, ‘Operation Deny Flight Update’ (22 March 1995). 52 Darryl Li, ‘Anatomy of a Balkan Massacre: The Failure of International Peacekeeping at Srebrenica’ (2000) 22 Harvard International Review, p 34-37. 53 ibid. 54 Darryl Li, ‘Anatomy of a Balkan Massacre: The Failure of International Peacekeeping at Srebrenica’ (n 51). 55 ibid. 56 Hillen JF, Killing with Kindness: The UN Peacekeeping Mission in Bosnia (Cato Institute 1995), p 4, para 1. 49

atrocities committed against civilians in the enclave. 55 This leads to the central issue that the United Nations deployed peacekeepers prior to the establishment of peace, which resulted in an ineffective sequence of actions. D. The veto as an instrument of political convenience Another major controversy surrounding the involvement of the UN in the civil war was the denial of Bosnia and Herzegovina’s fundamental right to self-defense under Article 51 of the UN Charter.5657 Acting under Resolution 713, initially directed at the former Yugoslavia, the Security Council imposed an arms embargo that prohibited the sale of weapons to all parties in the region.58 When Bosnia gained independence in 1992 and became a UN member, the embargo remained in place, creating contradictions and inconsistencies with the principles of the Charter.59 Maintaining this restriction made the measure ultra vires as it denied a sovereign state its legal right to protect itself. 60 Another example that demonstrates the failure to let Bosnia defend itself occurred when the attacks leading to the fall of Srebrenica began on 6 July 1995.61 Bosniak commanders asked UNPROFOR to return the weapons surrendered under the Demilitarization Agreement, but Dutchbat refused, insisting that the defense of the enclave was its responsibility.62 UNPROFOR did not return fire or request air support even as the enclave came under heavy attack. 63 Both of these events reveal the same doctrinal problem, the UN overcommitted to neutrality, applying peacekeeping principles in a situation that had long surpassed the limits of peaceful resolution. In practice, the UN not only failed to protect the Bosnian population but also took away their only remaining possibility to defend themselves and alter the course of events. E. Religion as an obstacle to morality An additional factor is the “crusade syndrome” as defined by many scholars which essentially showcases the fears of Western governments of Islamic expansionism. 64 Radovan Karadžić, President of the self-proclaimed Republika Srpska, and General Ratko Mladić,

Darryl Li, ‘Anatomy of a Balkan Massacre: The Failure of International Peacekeeping at Srebrenica’ (n 51). Ahmad, ‘The UN’s Role in the Bosnian Crisis: A Critique’, p 83-85, para 4 (n 45). 59 Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI, art 51. 60 UNSC Res 713 (25 September 1991) UN Doc S/RES/713, p 43, para 6. 61 Ahmad, ‘The UN’s Role in the Bosnian Crisis: A Critique’ (n 45). 62 ibid. 63 UNGA, The Fall of Srebrenica, para 239-244 (n 2). 64 ibid. 65 ibid. 66 Ahmad, ‘The UN’s Role in the Bosnian Crisis: A Critique’, p 91, para 3 (n 45). 58

Commander of the Bosnian Serb Army, deliberately advanced this narrative, portraying their campaign as Europe’s defense against an emerging “Islamic state” in the Balkans. 65 This Western perception stemmed from a deeper ideological bias that linked religion, particularly Islam, with opposition to democratic values. Many policymakers viewed Islamic states as inherently incompatible with liberal democracy, overlooking the fact that religion itself does not determine a state’s political or legal order. This misconception blurred the distinction between political ideology and humanitarian obligation, turning intervention into a matter of cultural alignment rather than human protection. In this context, veto power served less as a safeguard for collective balance and more as an instrument of selective restraint, reflecting political preference rather than moral or legal necessity. F. Overlooking ethnicity in an ethnic war The final flaw in the UNPROFOR mandate examined in this paper is the insufficient consideration of Bosnia's ethnic composition during the planning of the peacekeeping operation. Ethnic divisions shaped both the nature and consequences of the civil war, yet the United Nations did not prioritize deployment to areas with the highest levels of polarization. An empirical study by political scientist Stefano Costalli on UN intervention patterns during the Bosnian war demonstrated that deployment to ethnically divided regions was lower. 66 Regression analysis for 1994 indicated a statistically significant negative relationship between ethnic polarization and troop presence (-2.695) at the 5% level). 67 These findings reveal a contradiction between the UN's adopted strategy and the fundamental purpose of peacekeeping operations, which is to protect civilians. The regions most in need of protection were the least protected. This indicates that the UN adopted an ineffective approach to the conflict and further highlights the political and structural deficiencies in the mandate. The approach UN took suggests an avoidance of situations that could politically or operationally jeopardize the mission and the institution. VI. Recommendations This research paper analyzed the limitations of the United Nations Protection Force (UNPROFOR) mandate in Srebrenica and assessed how these constraints influenced operational effectiveness. The findings show that strategic inefficiencies, lack of clarity within 67

ibid. Stefano Costalli, ‘Does Peacekeeping Work? A Disaggregated Analysis of Deployment and Violence Reduction in the Bosnian War’ (2014) 44 British Journal of Political Science, page 370 <https://www.jstor.org/stable/43821972> accessed 26 September 2025. 69 ibid. 68

the peacekeeping mandate, United Nations Security Council (UNSC) ineffectiveness, reliance on symbolic measures, UNSC vetoes, and neglect of critical aspects of the conflict undermined the mandate. This section outlines four recommendations that address the challenges in Srebrenica and guide responses to future conflicts comparable to the one in Srebrenica. A. Beyond the Five: Democratizing power within the UNSC Structural reform is necessary to promote democratic governance within the Security Council. The current system of permanent membership and the veto power held by the five permanent members contradicts the principle of collective representation originally envisioned for the organization. Concentrating veto authority among a few dominant states undermines the impartiality of Security Council decisions. While abolishing the veto is unlikely in the near term, applying the veto to General Assembly resolutions rather than to Security Council resolutions may better achieve the balance required within the United Nations.68 Additionally, forming a coalition of donor governments (for armed forces) can enable intervention without the possibility of a veto application could facilitate the timely protection of civilians when consensus is unattainable. B. Inactiveness undercover Impartiality should not be equated with inactivity. The United Nations must move beyond the prohibition on interference in a state's internal affairs by codifying intervention thresholds that trigger collective action in cases of genocide, ethnic cleansing, or mass human rights violations without overstepping International Criminal Court’s (ICC) jurisdiction. When a state fails to protect its own population, international protection should be both lawful and mandatory. Such measures would prevent future paralysis, similar to that experienced in Bosnia, where political hesitation resulted in significant loss of life. Although, Responsibility to Protect (R2P) was adopted as a political commitment by UN states in 2005, the structure of the UNSC appears as an obstacle due to the permanent members. Consequently, this has resulted in a failure to prevent mass atrocities in various parts of the world. C. Restoring the purpose A redefined, purpose-driven UN should be evaluated by its tangible impact in preventing violence and protecting populations, not by the number of its programs. This can be achieved by narrowing the focus of UN mandates and staying true to its founding purpose 68

Mohammed Fadhel Jamali and others, ‘Making the United Nations Effective: Five Views on Its 50th Anniversary’ (1994) 11(3) International Journal on World Peace 3, p.16, para 2 accessed 30 September 2025.

of ensuring collective security and human dignity. The Srebrenica massacre and the extension of the mandate showed that unclear direction and overlapping mandates create confusion, thereby reducing mission effectiveness and moving the UN further from its stated goals. D. From the Headquarter to the Neighborhood This paper further recommends that the United Nations collaborate with regional organizations to address issues within their respective regions, as outlined in Chapter VIII of the UN Charter. Conflicts with ethnic dimensions, such as the situation in Bosnia, require cooperation with entities that possess the historical, cultural, and political knowledge necessary for effective resolution (local community councils, regional peacebuilding, or mediation groups, municipal or regional government authorities etc.). Granting regional bodies, a leading role in these matters would likely increase the efficiency of interventions, since internal issues may not be adequately addressed due to insufficient knowledge and limited empathy among Security Council members. VII.

Conclusion

The fall of Srebrenica remains one of the most powerful indictments of the international community’s failure to act when moral duty demanded it most. This notion of “moral duty” can be examined through the Hart–Fuller debate. In Fuller’s perspective, this moral obligation signifies that law should correspond with essential moral principles such as the preservation of human life, regardless of whether a formal legal guideline necessitates action. Hart, on the other hand, would differentiate between legal obligation and moral accountability, illustrating how the international community adhered to the confines of legal regulations even when ethical considerations called for more. In this regard, “moral duty” denotes the Fullerian expectation that laws and institutions ought to operate in accordance with fundamental moral standards, particularly in situations where human lives are at immediate risk, an expectation that the international community did not fulfill. The shortcomings of the United Nations Protection Force were not confined to the battlefield but rooted in the deeper structural and political flaws of the UN system itself. By equating impartiality with inaction and allowing national interests to dictate collective decision-making, the Security Council weakened the very principles on which the United Nations was founded.69

Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI, art 1(1).

The events in Bosnia exposed how peacekeeping, when shaped by political hesitation and ambiguous mandates, can lose its humanitarian purpose. To prevent history from repeating itself, reform must address both structure and spirit. Democratizing the Security Council, defining clearer thresholds for intervention, and strengthening cooperation with regional organizations would move the UN closer to the ideal of genuine collective security. Srebrenica should not be remembered only as a symbol of failure but as a catalyst for transformation. The United Nations’ legitimacy depends on its capacity to protect, not just to observe. Reclaiming that purpose means reaffirming that the protection of human life stands above procedural caution or political convenience. Only through this recognition can the UN restore faith in the promise it made to humanity, that the preservation of peace must always begin with the protection of people.

Intersectional Approaches to the Protection of Women in International Humanitarian Law By Karina Balaban* Abstract International humanitarian law is often presented as a universal and neutral framework that governs the conduct of armed conflict and protects civilians. However, feminist legal scholarship has revealed that this perceived neutrality masks an underlying male norm, that is, a set of assumptions that positions men's experiences, behaviours, and roles as the default standard against which all other experiences are measured. This norm has influenced both the development and enforcement of international humanitarian law. Women’s experiences in conflict have historically been viewed through paternalistic lenses of vulnerability, honour, and protection rather than centred on autonomy, agency, or legal equality. This paper critically explores how such gendered assumptions continue to permeate the language and structure of international humanitarian law, and it contends that genuine reform must adopt an intersectional perspective. Drawing on Kimberlé Crenshaw’s theory of intersectionality, the paper demonstrates that women’s experiences of war cannot be understood solely through the lens of gender, but through the interlocking effects of race, class, ethnicity, sexuality, and social status. Through an analysis of feminist critiques, key jurisprudence from the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the Former Yugoslavia, and contemporary case studies, this article reveals how the homogenisation of ‘women’ in legal discourse produces structural blind spots that obscure the realities of conflict-related harm. It further explores how international humanitarian law, shaped by a male-centred perspective that relies on binary assumptions about gender, continues to exclude or marginalise groups such as LGBTQIA+ individuals and female combatants, whose experiences fall outside traditional gender binaries.

L.L.B. Candidate, International and European Law Programme, The Hague University of Applied Sciences.

Introduction

International humanitarian law presents itself as a universal body of rules designed to regulate the conduct of armed conflict and to protect those who are not, or are no longer, participating in hostilities. 1 This claim to universality rests on the idea that its protections apply equally to all persons affected by conflict, regardless of identity or circumstance. Yet, despite this universalist ambition, international humanitarian law has long been shaped by the assumption of a gender-neutral legal subject, a figure imagined as both universally representative and unaffected by gendered power structures, who is, in practice, implicitly male.2 The structural neutrality of its provisions obscures the extent to which the law was historically drafted, interpreted, and operationalised through masculine experiences of warfare, reflecting the traditional image of the combatant as a fully able-bodied man and the civilian as the woman or child in need of protection. As feminist legal scholars have repeatedly argued, the consequences of this model extend beyond omission: it actively produces legal blind spots, reinforces hierarchies of protection, and erases forms of harm that do not fit within the dominant gendered narrative of war. This critique is developed by scholars such as Kimberlé Crenshaw and Hilary Charlesworth, whose work exposes how these narratives marginalise women’s experiences and obscure intersecting forms of discrimination. Intersectionality offers a critical means of exposing and responding to this problem. Originating in Black feminist legal scholarship, particularly in Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, intersectionality rejects the assumption that gender operates as a single, isolated category of identity.3 Rather than treating gender as a uniform or self-contained variable, intersectionality emphasises that gendered experiences are always constituted through, and inseparable from, other axes of social hierarchy, such as race, class, and sexuality. In this sense, it challenges traditional legal and policy approaches that rely on singular categories of analysis, demonstrating that such frameworks often obscure the complex and overlapping structures of inequality that shape individuals’ lived realities. Instead, it recognises that experiences of power, marginalisation, and violence are shaped through the

International Committee of the Red Cross, ‘What Is International Humanitarian Law?’ (Advisory Service on International Humanitarian Law, 2004). 2 Durham H and O’Byrne K, ‘The Dialogue of Difference: Gender Perspective on International Humanitarian Law’ (2010) 92 International Review of the Red Cross 31. 3 Crenshaw K, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ (1989) University of Chicago Legal Forum 139.

simultaneous operation of gender, race, class, age, sexuality, disability, and other social factors. Applied to armed conflict, intersectionality reveals how women do not experience war as a homogenous group, and how legal frameworks that rely on universal categories risk reproducing the same inequalities they claim to mitigate. II.

International humanitarian law and how it addresses women Before examining the specific challenges addressed in this article, it is first essential to

establish the relevant legal framework governing the protection of individuals, and by extension, women, in armed conflict. A. International humanitarian law – a definition and historical development In modern international law, the regulation of warfare is framed through two distinct yet interrelated bodies of rules: jus ad bellum, governing the legality of resorting to force, and jus in bello, regulating conduct during hostilities. Together, these legal frameworks embody the international community’s enduring objective to constrain the outbreak of armed conflict and to mitigate the human suffering it inevitably entails.4 International humanitarian law (jus in bello) is a set of rules that regulates the means and methods of modern warfare, imposing constraints on the conduct of hostilities during armed conflict to limit human suffering and destruction.5 The International Committee of the Red Cross (hereinafter ‘ICRC’), which is considered to have a special relationship with international humanitarian law as its guardian, describes it in the following manner: “International humanitarian law is part of international law that governs relations between states. It aims to protect persons who are not or no longer taking part in hostilities, the sick and wounded, prisoners and civilians, and to define the rights and obligations of the parties to a conflict in the conduct of hostilities.”6 Thus, the term international humanitarian law can be used to refer to all the rules of international law that concern armed conflict, whether customary, conventional, Hague law or Geneva law.7 Throughout time, the development of jus in bello was consistent. 8 International humanitarian law has undergone several stages of transformation, historically referred to as the 4

Daniel Thürer, International Humanitarian Law: Theory, Practice, Context (Hague Academy of International Law 2011). 5 ibid. 6 ibid. 7 Alexander A, ‘A Short History of International Humanitarian Law’ (2015) 26 European Journal of International Law 109 <https://academic.oup.com/ejil/article/26/1/109/497489> accessed 2 November 2025. 8 Natalino Ronzitti, Diritto internazionale dei conflitti armati (3rd edn,Torino: Giappichelli 2006).

“laws of war”, with the two terms being used interchangeably. This historical evolution reflects both the moral and political struggles inherent in regulating warfare. Over time, international humanitarian law has been interpreted through two contrasting lenses: one viewing it as a progressive narrative of compassion and civilisation, and the other as an instrument of oppression and imperialism. 9 From the latter standpoint, international humanitarian law is seen as a construct rooted in Western needs. This framework has, at times, subordinated human values and justified the suffering of civilians as an unavoidable or even necessary consequence of war.10 This bias is reflected in the language and priorities of international humanitarian law itself, where protection frameworks often reproduce gendered assumptions and fail to account for the diverse realities of women in conflict zones. For instance, by framing women primarily as passive victims in need of protection rather than as active participants, combatants, or heads of households, it can lead to legal blind spots in terms of protecting women in times of armed conflict. As such, the evolution of international humanitarian law cannot be truly understood without examining how gender and the absence of gender awareness have shaped its interpretation and application. B. How do the current legal frameworks address women? When discussing how international humanitarian law addresses the status of women in armed conflict, Article 27 of the 1949 IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (hereinafter “the Fourth Geneva Convention”) serves as a logical starting point, because it explicitly recognises women’s rights as protected persons and provides a foundational legal framework for their treatment during conflict. 11 Women are entitled to the guarantees that must be granted to all protected persons, such as respect for their person, their honour, their family rights, their religious convictions and practices, and manners and customs.12 Moreover, women are given additional protection against any attack on their ‘honour’, such as acts of “rape, enforced prostitution, or any form of indecent assault.” 13

Alexander A, ‘A Short History of International Humanitarian Law’ (2015) 26 European Journal of International Law 109 <https://academic.oup.com/ejil/article/26/1/109/497489> accessed 2 November 2025. 10 ibid. 11 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287, art 27. 12 ibid. 13 ibid.

Following this, rule 134 of the ICRC customary IHL study recalls that “the specific protection, health and assistance needs of women affected by armed conflict must be respected.” 14 Women are thus seen as ‘vulnerable persons’ or ‘protected persons’ based on their status as ‘honourable’ beings, not as autonomous subjects of law. The gendered wording used reinforces the idea that women are uniquely or naturally vulnerable to such abuse. Yet, this conception neglects the idea that men and children can also be subject to sexual abuse. Such framing contradicts one of the fundamental values of the Geneva Conventions: humane treatment. Following this point of view, the term ‘honour’ is seen in modern scholarly articles as “dated, sexist and legally imprecise language.” 15 ‘Honour’ is not defined in the Convention. The concept of honour has long been rooted in patriarchal values, with its origins traceable to cultural traditions dating back to the Middle Ages, being linked with modesty and chastity. 16 Furthermore, with respect to the specific protection afforded to women, Article 14(2) of the 1949 III Geneva Convention Relative to the Treatment of Prisoners of War (hereinafter “the Third Geneva Convention”) provides that “Women shall be treated with all the regard due to their sex and shall benefit by treatment as favourable as that granted to men.” This provision focuses on women who are members of the armed forces and have fallen into enemy hands. 17 While it appears to grant equality in treatment, it simultaneously reflects the underlying assumptions that men are the default combatants and women are exceptional or marginal participants in armed conflict. 18 As a result, women’s experiences are framed as secondary, which can give the impression that the system of rules primarily reflects male priorities rather than the full diversity of participants in war. Out of the 19 provisions in the four conventions that explicitly refer to women, nine specifically concern pregnant women or women with small children. 1920 Across these

International Committee of the Red Cross (ICRC), ‘Customary IHL – Rule 134 Women’ (ICRC, 2025) <https://ihl-databases.icrc.org/en/customary-ihl/v1/rule134> accessed 2 November 2025. 15 P Viseur Sellers and I Rosenthal, ‘Rape and Other Sexual Violence’ in A Clapham, P Gaeta and M Sassòli (eds), The 1949 Geneva Conventions: A Commentary (OUP 2015) 344. 16 Ruth Mazo Karras, Sexuality in Medieval Europe: Doing Unto Others (3rd edn, Routledge 2017). 17 Geneva Convention Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135, art 14(2). 18 Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law (Manchester University Press 2000) 3. 19 Geneva Convention Relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135. 20 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287.

provisions, women are consistently portrayed as natural caregivers and are frequently grouped alongside the wounded and the sick, reinforcing a perception of dependency and passivity. 21 This gendered conceptualisation contributes to what is known as gender essentialism, which refers to the assumption that men and women have rigidly defined experiences, based on ‘essential’ attributes linked to their sex. 22 The consequence of this framing is that women’s experiences in conflict are often homogenised and narrowly defined, potentially overlooking the diversity of their roles, agency and participation, while still recognising genuinely specific vulnerabilities such as pregnancy or care for children. Within international humanitarian law, this is shown by the assumption that the combat experiences are primarily male and that women are usually victims or caregivers. 23 Indeed, 42 rules in the 1949 Geneva Conventions I-IV and their 1977 Additional Protocols I-II are subjecting women to this status, by using the frequent categorisation of ‘women and children’, reinforcing this protective, yet paternalistic framing. 24 In theory, the norms of international humanitarian law are supposed to assist ‘all persons’, regardless of sex, gender, race, age or religious belief. 25 However, in practice, its implementation often falls short of this universal aspiration. Inaccurate evaluations of civilian harm, which are otherwise the foundation of international humanitarian law, can also result from excluding gender views.26 Extending international humanitarian law to the full extent permits an understanding of social power dynamics, from the context of marginalised groups in particular contexts, as these differences can create varying risks and harm during conflict. C. Feminist critiques of international humanitarian law Taken together, these gendered assumptions and legal omissions expose the limitations of international humanitarian law in addressing the lived realities of women affected by conflict. This, in turn, raises a critical question: why is a feminist perspective on international

A Crowe, ‘“All the regard due to their sex”: Women in the Geneva Conventions of 1949’ (HRP Research Working Paper Series 16‑001, Harvard Law School, December 2016) <https://hrp.law.harvard.edu/wpcontent/uploads/2016/12/Anna‑Crowe_HRP‑16_001.pdf> accessed 2 November 2025. 22 A P Harris, ‘Race and Essentialism in Feminist Legal Theory’ (1990) 42 Stanford Law Review 585. 23 N Raju and L Bruun, ‘Integrating Gender Perspectives into International Humanitarian Law’ (SIPRI Insights on Peace and Security 2023/08, August 2023) <https://www.sipri.org/sites/default/files/202308/insights_integrating_gender_perspectives_into_ihl.pdf> accessed 2 November 2025. 24 H Durham and K O’Byrne, ‘The Dialogue of Difference: Gender Perspectives on International Humanitarian Law’ (2010) 92 International Review of the Red Cross 31. 25 International Committee of the Red Cross, ‘What Is International Humanitarian Law?’ (Advisory Service on International Humanitarian Law, 2004). 26 ICRC, Gendered Impacts of Armed Conflict and Implications for the Application of International Humanitarian Law (ICRC June 2022) 7.

humanitarian law necessary? It has been noted that international humanitarian law does not interact easily with feminist legal theory. Helen Durham has said that: “Feminist legal scholars have expressed frustration at IHL’s lack of analysis of matters such as systematic gender inequalities. They argue that this contributes to IHL’s inability to move beyond a “male norm” when dealing with the impact of armed conflict upon women. Many of these criticisms highlight the tensions between the pragmatic and limited aims of IHL and the range of expectations place upon this area of law […] IHL does not attempt to place any regulations upon the basis of social structure before, or after, the conflict […] its limited aim leaves no room […] for deeper social analysis of inherent inequalities required by feminist legal theory.”27 Helen Durham’s observation underscores the broader critique that international humanitarian law, while designed to regulate armed conflict and its methods, is structurally limited in its ability to engage with deeper social and gender inequalities. This critique primarily addresses the foundational international humanitarian treaties, but broader questions arise: does it extend to international criminal law, secondary sources, or the wider discourse around international humanitarian law? Indeed, the realities in which the four Geneva Conventions were developed have radically changed since 1949, but international humanitarian law often operated within what feminist scholars describe as a “male norm”, where women’s experiences are treated as exceptional rather than integral to the framework of protection. 28 Conversely, many scholars, such as Karima Bennoune, argue that adapting international humanitarian law to contemporary realities would require reopening and revising the fundamental principles of its foundational texts.29 At the same time, the ICRC has acknowledged that one of its current challenges lies in defining and fulfilling its specific role within an increasingly complex and competitive humanitarian landscape. 30 A feminist perspective, therefore, becomes not only relevant but crucial for exposing and challenging these underlying assumptions. 31 It seeks to reframe international humanitarian 27

H Durham and K O’Byrne, ‘The Dialogue of Difference: Gender Perspectives on International Humanitarian Law’ (2010) 92 International Review of the Red Cross 31. 28 ibid. 29 ibid. 30 Daniel Thürer, International Humanitarian Law: Theory, Practice, Context (Hague Academy of International Law 2011). 31 H Durham and K O’Byrne, ‘The Dialogue of Difference: Gender Perspectives on International Humanitarian Law’ (2010) 92 International Review of the Red Cross 31.

law beyond its traditional focus on state-centred and battlefield concerns, emphasising instead social, political and domestic dimensions of war where gender-based harms frequently occur. Gender bias often has the effect of marginalising or completely erasing the experiences of individuals who do not conform to traditional or stereotypical gender roles; for instance, male caregivers and female combatants may be overlooked.32 By reinforcing these binaries of gender norms, international humanitarian law risks misrepresenting the realities of armed conflict, undermining the recognition of diverse roles and responsibilities and the effectiveness of its protection mechanisms for all individuals affected by war. By applying feminist legal theory analysis, gaps in international humanitarian law are revealed, particularly in its failure to account for the intersectional realities of women, such as those shaped by race and class. An ICRC initiative to revise the official commentaries to the Geneva Conventions and Additional Protocols to integrate commitments to gender perspectives is noteworthy and could serve as the basis for a more gender-responsive interpretation of international humanitarian law.33 III.

Intersectional perspectives on the protection of women in armed conflict under international humanitarian law A. Defining intersectionality Intersectionality, as Kimberlé Williams Crenshaw defines it, refers to the experiences of

individuals who face multiple, simultaneous axes of disadvantage that cannot be understood in isolation.34 To understand the concept of intersectionality, Crenshaw illustrates it with a metaphor: a pedestrian struck at the intersection of two streets experiences the combined impact of traffic from multiple directions. The collision cannot be fairly attributed to either street alone, just as overlapping forms of discrimination cannot be understood by isolating race or gender. In the same way, Crenshaw gives the example of Black women facing discrimination, arguing that they cannot reasonably be required to demonstrate that it stems solely from their race or solely from their gender. Instead, they are often subject to overlapping and interconnected forms of

H. M. Kinsella, ‘Gendering Grotius: Sex and Sex Difference in the Laws of War’ (2006) 34 Political Theory 166. 33 N Raju and L Bruun, ‘Integrating Gender Perspectives into International Humanitarian Law’ (2023) SIPRI Insights on Peace and Security No 2023/08 <https://www.sipri.org/sites/default/files/202308/insights_integrating_gender_perspectives_into_ihl.pdf> accessed 2 November 2025. 34 Katherine Jenkins, Feminist Philosophy: A Very Short Introduction (OUP 2021).

oppression, which must be recognised in combination. 35 The definition shows historical contextualization in critical theory and underlines that “intersectionality is the brainchild of feminism.”36 When examining the experiences of women in armed conflict, a similar intersectional approach is essential: their vulnerabilities and harms cannot be fully understood by considering gender alone, but must account for how race, ethnicity and class, and other social factors intersect with gender to shape their experiences under international humanitarian law. For instance, a displaced woman from an ethnic minority group may face both a heightened risk of sexual violence and limited access to humanitarian aid due to systematic discrimination, illustrating how multiple factors combine to affect her protection under international humanitarian law. B. What is gender? Within the context of international law, gender has been defined in the ICRC Guidance Document entitled Addressing the Needs of Women Affected by Armed Conflict as the following: “The term ‘gender’ refers to the culturally expected behaviours of men and women based on roles, attitudes and values ascribed to them based on their sex, whereas ‘sex’ refers to biological and physical characteristics.” 37 The terms ‘gender’ and ‘sex’ are often used interchangeably, yet they differ in important ways. The distinction between them reflects deeper conceptual dichotomies such as body versus mind and nature versus culture. Moreover, specific interpretations of gender and sexual difference play a crucial role in shaping the perceived realities and structures of international law. 38 International humanitarian law rules do not show enough distinction between the notions, and only the terms ‘sex’ and ‘woman’ are used through protocols and conventions. 39 However, distinction is needed in order to differentiate between gender-specific needs and sex-specific

Crenshaw K, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ (1989) 1989 University of Chicago Legal Forum 139. 36 S. Bilge, ‘Intersectionality Undone: Saving Intersectionality from Feminist Intersectionality Studies’ (2013) 10 Du Bois Review: Social Science Research on Race 405. 37 ICRC, Addressing the Needs of Women Affected by Armed Conflict: An ICRC Guidance Document (ICRC, March 2004) <https://www.icrc.org/sites/default/files/external/doc/en/assets/files/other/icrc_002_0840_women_guidance.pdf > accessed 2 November 2025. 38 Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law (Melland Schill Classics in International Law, 2000). 39 International Committee of the Red Cross (ICRC), Gendered Impacts of Armed Conflict and Implications for the Application of International Humanitarian Law (ICRC, Morges, June 2022) 11.

needs.40 Thus, existing remedies and protection mechanisms cannot be guaranteed, nor can they adequately account for the diverse types of harm that individuals may experience within a specific context. For example, nuclear weapons have sex-specific effects on women’s reproductive health because of their radiation. 41 Therefore, making the difference between sex and gender is essential, since it means ensuring equal protection to all persons in armed conflict. As noted in the United Nations Institute for Disarmament Research Expert Report Summary, translating these insights into practice can be a complex process.42 Gender is both an intensely personal and inherently public subject.43 Employing gender as a category of analysis allows for a critical examination of how social norms are constructed, maintained, and transformed over time. Adopting a gender perspective within international humanitarian law further serves as an important reminder that rigid classifications of ‘men’ and ‘women’ as ‘violators’ and ‘victims’ risk oversimplifying the realities of armed conflict and obscuring the diverse and evolving needs of affected populations. 44 C.

Gender mainstreaming vs. intersectional analysis

The contemporary idea of intersectionality is based on the knowledge that people’s experiences of privilege, power and marginalisation are influenced by a variety of independent, overlapping factors, such as gender, race, and social status, that work in tandem with social and political contexts rather than by a single axis of identity. 45 Intersectionality seeks to highlight the lived realities of inequality experienced by individuals, rather than merely incorporating gender as a means of analysis. 46 For instance, while gender mainstreaming may focus on women as a single group, an intersectional approach considers how women from different ethnic backgrounds, socioeconomic statuses, or disabilities experience conflict differently. A solely gender focused approach risks reducing the discussion to the concept of gender mainstreaming, whereas intersectionality exposes the

N Raju and L Bruun, ‘Integrating Gender Perspectives into International Humanitarian Law’ (SIPRI Insights on Peace and Security 2023/08, August 2023) <https://www.sipri.org/sites/default/files/202308/insights_integrating_gender_perspectives_into_ihl.pdf> accessed 2 November 2025. 41 R H Dalaqua et al, Missing Links: Understanding Sex and Gender-related Impacts of Chemical and Biological Weapons (UNIDIR, Geneva, 2019). 42 ibid. 43 ibid. 44 ibid. 45 P H Collins and S Bilge, Intersectionality (Polity Press 2016). 46 Julia Regina Mühlhauser, Intersectionality in Humanitarian Response: Just added empty words or the way for an impactful action? (2023) Lunds Universitet.

complex and overlapping structures of oppression that shape people’s experiences within systems of law and conflict. To understand the difference between using intersectional approaches and the notion of gender mainstreaming, a definition of the latter is needed. The United Nations Economic and Social Council first defined it as follows: “Mainstreaming a gender perspective is the process of assessing the implications for women and men of any planned action, including legislation, policies or programmes, in all areas and at all levels. It is a strategy for making women’s as well as men’s concerns and experiences an integral dimension of the design, implementation, monitoring and evaluation of policies and programmes in all political, economic and societal spheres so that women and men benefit equally and inequality is not perpetuated. The ultimate goal is to achieve gender equality.”47 According to Hilary Charlesworth, at the UN level, ‘gender’ is assumed to be a synonym for women, leaving men’s gender identities unexamined. It requires women to change, not men. 48 At its core, gender mainstreaming refers to the systematic evaluation and consideration of how all decisions, policies and programs, whether large-scale or routine, may differently affect men and women. 49 In practice, gender mainstreaming initiatives are frequently linked to the implementation of provisions within peace agreements. It is clear to see that current international humanitarian law norms use this concept to achieve a certain level of protection for women, while assuming that they require enhanced protection in armed conflict. While gender mainstreaming represents a significant step toward acknowledging gender inequalities, its application within international humanitarian law remains largely superficial. By framing women primarily as a category requiring protection, international humanitarian law risks enforcing traditional gender stereotypes that portray women as inherently vulnerable and in need of paternalistic safeguards. This approach often overlooks the structural and contextual factors, such as race, class, ethnicity, and social status, that compound women’s vulnerability in conflict situations. In doing so, gender mainstreaming within international humanitarian law tends to universalise women’s experiences, failing to account for the diverse realities faced by women of colour, displaced women, or those from marginalised communities.

United Nations Economic and Social Council, Report of the Economic and Social Council for the Year 1997 (UN General Assembly, Official Records, 52nd Session, Supplement No 3, UN Doc A/52/3/Rev.1). 48 Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law (Melland Schill Classics in International Law, 2000) 196. 49 ibid.

Furthermore, this narrative obscures the complex and multifaceted realities of women’s participation in contemporary conflicts. In today’s geopolitical landscape, women are not only victims of violence but also active agents, as combatants, peacebuilders, political leaders, and in some cases, perpetrators of violence. 50 By failing to adequately acknowledge these diverse roles, international humanitarian law perpetuates gendered assumptions that equate femininity with passivity and vulnerability, while associating agency, violence, and power with masculinity.51 This binary understanding limits the law’s capacity to engage with the full spectrum of women’s experiences and responsibilities in conflict situations. Ultimately, integrating an intersectional framework within international humanitarian law is essential to transcend the limitations of gender mainstreaming and to develop a more comprehensive understanding of how conflict and displacement shape experiences of harm. By acknowledging the interplay of gender, race, class, and other social hierarchies, intersectionality allows for the identification of both visible and structural inequalities that conventional gender-focused approaches tend to overlook. In doing so, it challenges the reduction of women to passive victims and instead recognises their diverse roles and capacities as agents within conflict and peacebuilding contexts. This shift is crucial for fostering a more inclusive and equitable interpretation of humanitarian norms, one that genuinely reflects the complex realities of those affected by armed conflict. IV.

Structural inequalities embedded in international humanitarian law A. The male norm in law There exists a long-standing social tradition of portraying women as the ‘weaker sex’, a

notion that becomes particularly pronounced in the context of armed conflict. 52 In the Geneva Conventions, multiple provisions state that “women shall be treated with all the regard due to their sex.”53 ‘Sex’ was not invoked merely to recognise biological needs, such as pregnancy or childbirth, but reflected a broader, paternalistic assumption that women were inherently fragile, dependent, and in need of protection. The drafters of the Convention viewed ‘sex’ through a

International Committee of the Red Cross (ICRC), Women Facing War (Geneva, 2001) <https://www.icrc.org/sites/default/files/external/doc/en/assets/files/other/icrc_002_0798_women_facing_war.p df> accessed 2 November 2025. 51 ibid. 52 R Charli Carpenter, ‘Women, Children and Other Vulnerable Groups: Gender, Strategic Frames and the Protection of Civilians as a Transnational Issue’ (2005) 49 International Studies Quarterly 302. 53 International Committee of the Red Cross (ICRC), The Protection of Women in International Humanitarian Law (1985) <http://www.icrc.org/eng/resources/documents/misc/57jmfj.htm>accessed 2 November 2025.

gendered lens, linking biological differences with social weakness. 54 This perspective influenced how States treated prisoners of war, imposed disciplinary measures, and assigned labour duties.55 The phrase “will all the regard due to their sex” in Article 14(2) of the Third Geneva Convention reflects the same underlying logic as the reference to protecting women’s ‘honour’ in Article 27 of the Fourth Geneva Convention. Both provisions rely on gendered assumptions that portray women as inherently vulnerable, modest, or in need of special moral protection, rather than recognising them as autonomous legal subjects. Following the preceding discussion regarding the wording in Article 27 of the Fourth Geneva Convention, a comparison must be made between how the concept of ‘honour’ is used throughout the Convention, especially in the cases where it is in relation to men and then to women. Aside from Article 14 of the Third Geneva Convention and Article 27 of the Fourth Geneva Convention, it appears only in Article 21 of the Third Geneva Convention, which concerns honourable burial. Article 21 requires that prisoners of war released on promise or parole “are bound on their personal honour scrupulously to fulfil … the engagements of their parole or promises.”56 Both Articles 14 and 21 are grounded in a distinctly masculine notion of honour, one derived from an ahistorical conception of war as an honourable enterprise conducted by men bound by a moral code governing relations with fellow combatants. 57 Given this deeply gendered understanding of honour, it is unsurprising that the notion of women’s ‘special’ honour features more prominently in the interpretation of article 27(2).58 This concept of ‘special’ honour reflects a broader patriarchal narrative in which those identified as feminine are positioned as needing protection by those identified as masculine. Whereas for men it is associated with active qualities, such as “bravery, fortitude, self-reliance”, for women it is tied to passive and restrictive qualities, like “chastity, modesty, frailty and dependence”. 59 Highlighting this active-passive contrast clarifies how the legal framework constructs men as

Anna Crowe, ‘“All the regard due to their sex”: Women in the Geneva Conventions of 1949’ (HRP Research Working Paper Series 16‑001, Harvard Law School, December 2016) <https://hrp.law.harvard.edu/wpcontent/uploads/2016/12/Anna‑Crowe_HRP‑16_001.pdf> accessed 2 November 2025. 55 ibid. 56 Geneva Convention relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135, art 21. 57 Patricia Sellers, ‘The Cultural Value of Sexual Violence’ (1999) 93 Proceedings of the Annual Meeting (American Society of International Law) 317. 58 Anna Crowe, ‘“All the regard due to their sex”: Women in the Geneva Conventions of 1949’ (HRP Research Working Paper Series 16‑001, Harvard Law School, December 2016) <https://hrp.law.harvard.edu/wpcontent/uploads/2016/12/Anna‑Crowe_HRP‑16_001.pdf> accessed 2 November 2025. 59 ibid.

autonomous actors and women as objects of protection, reinforcing traditional gender hierarchies rather than dismantling them. Additionally, the provisions that single out pregnant women and those with children imply that the ones in these situations deserve higher protection than women without children. 60 This distinction is largely justified within the Conventions based on protecting the child, rather than recognising any independent vulnerability or entitlement of the mother herself. The Conventions place significant emphasis on women’s reproductive capacity, yet this protection is largely framed around safeguarding the welfare of children rather than supporting the mothers themselves. 61 While the framing partly reflects the social realities and assumptions prevailing at the time, namely that women were typically the primary caregivers and therefore more exposed or constrained during conflict, tying the protection to ‘women’ as a category risks reinforcing gendered stereotypes rather than responding to actual vulnerability. 62 A more effective and contemporary approach would therefore focus on the specific conditions that create vulnerability, irrespective of sex. For instance, the rules could be reformulated in genderneutral terms to protect persons who are pregnant, or responsible for infants or dependent children. Thereby, it preserves the protective function while avoiding assumptions about who performs caregiving roles. Such an approach, as Crowe suggests, allows international humanitarian law to address the real needs of current conflicts without relying on outdated gender categories. 63 Even the protection extended to children reflects gendered assumptions, as the Conventions focus on children in ways to presume women as their primary caregivers, yet fail to address broader issues of sexual violence against girls and other forms of harm that affect both boys and girls, leaving significant gaps in protection. 64 Such language reinforces the dichotomy of ‘women and children’ as inherently innocent and in need of protection, implicitly excluding adult men from this category.65 Furthermore, rape is notably absent from the list of acts constituting grave breaches under the Geneva Conventions. This omission appears to stem more from the prevailing indifference and oversight than from intentional exclusion. The travaux préparatoires of the four Geneva 60

ibid. ibid. 62 ibid. 63 ibid. 64 Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law (Melland Schill Classics in International Law, 2000) 301. 65 Reaching Critical Will & Article 36, Sex and Drone Strikes: Gender and Identity in Targeting and Casualty Analysis (October 2014) <https://www.article36.org/wp-content/uploads/2014/10/sex-and-drone-strikes.pdf> accessed 2 November 2025. 61

Conventions contain no reference to rape, and the historical development of the concept of ‘grave breaches’ suggests that the inclusion of sexual violence was never specifically or consciously contemplated during the drafting process. As Charlesworth and Chinkin have observed in their book entitled The Boundaries of International Law, “international law is constructed upon particular male assumptions and experiences where ‘man’ is taken to represent the ‘human’.” 66 While their work establishes a foundational critique, this article goes further by examining how these male-centred assumptions specifically manifest in international humanitarian law’s treatment of women, highlighting gaps that persist in both law and practice. This approach allows for a nuanced analysis of intersectional vulnerabilities, and the law could be reformed to better reflect the realities of diverse experiences in current conflicts. B. Socio-economic and racial dimensions Gendered violence and disparities during armed conflict are often normalised within local communities and overlooked by both international and national institutions, as they may reflect deeply entrenched patriarchal norms and power structures. A socio-economic lens offers crucial insight into how armed conflict exacerbates existing inequalities and informs the development of more inclusive and context-sensitive protection frameworks. Armed conflicts exacerbate existing inequalities, dismantling social and economic structures and leaving women, particularly heads of households, vulnerable to loss of livelihood, limited access to services, and increased risks of violence, trafficking, forced recruitment, and abduction. 67 Research indicates that during armed conflicts, factors such as poverty, social disruption, and housing insecurity often erode traditional male roles. In response, some men attempt to reassert their sense of masculinity through acts of violence within their home.68 This gives rise to the widespread occurrence of gender-based violence against women and girls. This includes

Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law (Melland Schill Classics in International Law, 2000) 17. 67 Anderson S and Sviatschi MM, ‘Gender and Armed Conflict’ [2025] Economic Policy <https://academic.oup.com/economicpolicy/advance-article/doi/10.1093/epolic/eiaf010/8247963> accessed 2 November 2025. 68 Diakonia, ‘Sexual violence and IHL’ (Diakonia International Humanitarian Law Centre) <https://www.diakonia.se/ihl/resources/international‑humanitarian‑law/ihl‑protection‑sexual‑violence/> accessed 2 November 2025.

a broad range of severe abuses, such as murder, torture, sexual slavery, rape, forced marriage and forced sterilisation. This is also linked to the phenomenon where women are categorised as the most vulnerable people in the context of armed conflict, since, in general, they lack access to and control of resources, causing dependency on others. 69 Large numbers of dependents and single household headship increase women’s domestic burden. This is further aggravated by depleted infrastructure and the breakdown of the state as a provider of support services for women. 70 This dynamic reveals a critical gap in international humanitarian law: despite occurring in the broader context of armed conflict, such domestic forms of gender-based violence are largely unaddressed by the current international humanitarian law provisions, which focus on hostilities between parties, though they may not be addressed under complementary international human rights law frameworks. Consequently, women’s rights in these contexts remain inadequately protected. Therefore, higher levels of gender equality, such as increased participation of women in decision-making, peace negotiations and political institutions, may reduce the likelihood of the intensity of conflict by promoting more inclusive governance, addressing grievances earlier, and ensuring that the perspectives of those disproportionately affected by violence inform policy and protection measures. Racial and socio-economic dimensions further shape women’s experiences. Legal frameworks often overlook minority and marginalised women by failing to recognise their specific vulnerabilities, relying on broad categories that erase ethnic or economic differences, and providing limited enforcement against systematic discrimination. As a result, these women remain disproportionately exposed to violence, including sexual and domestic abuse, and in some cases, women of a particular ethnic group might be sold into sexual slavery.71 Taken together, these socio-economic and racial dynamics illustrate that women’s experiences of harm in armed conflict cannot be meaningfully understood through a singleaxis gender lens alone. Conflict does not merely add violence to pre-existing inequalities; it

H van Dijkhorst and S Vonhof, Gender and Humanitarian Aid: A Literature Review of Policy and Practice (Wageningen University & CORDAID, 2005) <https://www.researchgate.net/publication/40111880_Gender_and_Humanitarian_Aid_a_Literature_Review_of _Policy_and_Practice> accessed 2 November 2025. 70 ibid. 71 International Committee of the Red Cross, Gendered Impacts of Armed Conflict and Implications for the Application of International Humanitarian Law (ICRC, June 2022).

deepens and reconfigures them in ways that international humanitarian law still fails to recognise. C. LGBTQIA+ exclusion in international humanitarian law In the same vein, the wording in international humanitarian law rules has an inherent binary to gender. It does not recognise the need for protection for LGBTQIA+ individuals, since it does not go beyond the categories of ‘men’ and ‘women’. 72 In particular, the preexisting societal inequalities, lack of safety, and harm LGBTQIA+ people may already experience in peacetime, including from family and community members, are at risk of being exacerbated when special protection is not provided to them during armed conflict. 73 LGBTQIA+ detainees in non-international armed conflict face discrimination, sexual abuse, and lack of access to medical care, yet international humanitarian law does not explicitly address these risks. 74 Additionally, LGBTQIA+ individuals remain largely invisible in conflict protection frameworks, leaving them exposed to arbitrary detention, forced displacement, and gender-based violence.75 The capacity of international humanitarian law to address the needs and vulnerabilities of LGBTQIA+ individuals thus hinges on a sincere interpretation of the current regulations and the implementation of targeted measures. 76 If these issues continue to be unaddressed through interpretative efforts, some provisions of international humanitarian law may be insufficient in safeguarding individuals across the gender spectrum during armed conflicts. As discussed in the section entitled “How do the current legal frameworks address women?”, the emphasis on honour in terms of discussing sexual violence against women is deeply controversial. However, significant progress has been achieved through various judicial developments in international criminal law and United Nations Security Council resolutions that explicitly prohibit rape and other forms of sexual violence against all persons. Despite these advances, there remains considerable scope for advancing the integration of gender perspectives within international humanitarian law. Such perspectives are essential to 72

N Raju and L Bruun, ‘Integrating Gender Perspectives into International Humanitarian Law’ (SIPRI Insights on Peace and Security 2023/08, August 2023) <https://www.sipri.org/sites/default/files/202308/insights_integrating_gender_perspectives_into_ihl.pdf> accessed 2 November 2025. 73 V Rossouw, ‘“Or any other similar criteria”: Towards advancing the protection of LGBTQI detainees against discrimination and sexual and gender‑based violence during non‑international armed conflict’ (2021) 102 International Review of the Red Cross 765. 74 ibid. 75 A Margalit, ‘Still a Blind Spot: The Protection of LGBT Persons during Armed Conflict and Other Situations of Violence’ (2018) International Review of the Red Cross no 907/908/909 254. 76 ibid.

broadening and deepening the assessment of sexual violence, ensuring that its prohibitions encompass the full range of gendered harms experienced in armed conflict. This means that men, boys and LGBTQIA+ persons require further attention when tackling the diversity of victims and survivors.77 V.

The lived realities of women in armed conflict A. Jurisprudence of the ICTR and the ICTY The development of international criminal jurisprudence has played an important role in

exposing the gendered dimensions of violence in armed conflict, particularly through the recognition of sexual violence as a fundamental violation of international law. These judicial developments are directly relevant to international humanitarian law because they illustrate how the provisions have historically failed to fully account for gendered harms, highlighting gaps that intersectional approaches could address. The International Criminal Tribunal for Rwanda (hereinafter ICTR) made a landmark contribution to this evolution in Prosecutor v Akayesu, where, for the first time, rape was judicially recognised as a constitutive act of genocide.78 The Trial Chamber held that sexual violence was used as “a step in the process of destruction of the Tutsi group”, noting that rape was systematically employed as a tool of humiliation, terror and ethnic erasure. 79 This case demonstrates a critical intersection of international humanitarian law and international criminal law: it shows that violations protected under international humanitarian law, such as sexual violence, can function as deliberate tools of war, yet traditional humanitarian law frameworks lacked the language and mechanism to recognise these harms fully. The ICTR in Akayesu further emphasised that the sexual violence committed against Tutsi women was not incidental, but was perpetrated because they were Tutsi, that is, on the basis of their ethnic identity.80 Sexual violence functioned as an integral component of the genocidal campaign, serving as a mechanism for the physical and symbolic destruction of the Tutsi group. In recognising this, the Tribunal demonstrated that acts of gender-based violence cannot be analytically separated from the ethnic dimensions of the atrocity. The judgment thus represents

International Committee of the Red Cross (ICRC), “That never happens here”: Sexual and gender‑based violence against men, boys and/including LGBTIQ+ people in humanitarian settings (ICRC, 9 Feb 2022) <https://www.icrc.org/en/document/sexual-gender-violence-against-men-boys-lgbtiq> accessed 2 November 2025. 78 Prosecutor v Akayesu (Trial Chamber), ICTR‑96‑4‑T, Judgment (2 September 1998). 79 ibid. 80 ibid.

an important departure from the earlier legal approaches that treated gender-based violence as an isolated or secondary harm, instead illustrating that political violence, gender, and ethnic persecution must be examined in conjunction rather than in isolation.81 The Akayesu case, therefore, stands as a foundational example of why atrocities involving genocide, apartheid, persecution, and sexual and gender-based crime require an expressly intersectional legal analysis, rather than one grounded in single-axis categories of harm.82 This highlights a key limitation in international humanitarian law: without an intersectional lens, protection for civilians fails to account for how ethnic, racial, and gendered identities combine to shape vulnerability. A similar pattern emerges in the jurisprudence of the International Court of the former Yugoslavia, most notably in Prosecutor v Kunarac, the first conviction for rape as a crime against humanity.83 The tribunal acknowledged that women and girls in Foca were subjected to sexual slavery, mass detention, and trafficking as part of a widespread and systematic attack. What the judgment accomplished was the formal legal recognition of rape as an instrument of coercive domination rather than an incidental violation of honour. However, the decision lacked intersectional reasoning. Although the victims were overwhelmingly Bosniak Muslim women, the judgment framed that harm in gender-universal terms, overlooking the religious and ethnic identity that made them targets of sexual violence. 84 While these rulings advance international humanitarian law by formally recognising sexual violence as a prosecutable act, they demonstrate a continued gap: the decisions largely framed women’s experiences in genderuniversal terms, leaving other axes of identity, such as religion and ethnicity, largely unexamined. These cases are commonly celebrated as breakthroughs in feminist legal theory, but their limitations reveal how international criminal law, and by extension international humanitarian law, continues to operate through a binary lens: ‘woman’ is treated as a stable legal category while race, class, ethnicity, and religion are relegated to background facts. This mirrors what Crenshaw identified in her essay: when one axis is privileged in legal reasoning, the result is

ibid. G Maučec, ‘The International Criminal Court and the Issue of Intersectionality—A Conceptual and Legal Framework for Analysis’ (2021) 21 International Criminal Law Review 1. 83 Prosecutor v Kunarac, Kovač and Vuković (Trial Chamber), IT‑96‑23 & IT‑96‑23/1‑T, Judgment (22 February 2001). 84 I Skjelsbæk, ‘Victim and Survivor: Narrated Social Identities of Women Who Experienced Rape During the War in Bosnia-Herzegovina’ (2006) 16 Feminism & Psychology 373. 82

not neutrality but erasure.85 In both Rwanda and Bosnia, it was the intersection of gender and group identity, not gender alone, that shaped the form and purpose of violence. Although the jurisprudence of the ICTY and ICTR did not fully articulate a sustained intersectional framework, their recognition of the overlapping discriminatory dimensions of sexual violence, particularly its ethnic and religious motivations, nonetheless marked a significant legal shift. 86 These judgments were pioneering, establishing the doctrinal basis for understanding rape not merely as an incidental by-product of armed conflict, but as a constitutive act of genocide and a recognised crime against humanity. By acknowledging that sexual violence can operate as a tool of ethnic destruction and group persecution, the tribunals laid essential groundwork for the evolution of the relationship between gendered harms and identity-based violence.87 A review of the surrounding UN and NGO records further confirms this erasure. During the Rwandan genocide, an estimated 250.000 to 500.000 women and girls were raped. 88 Similar patterns appear in the Eastern Democratic Republic of Congo. 89 Yet these figures rarely acknowledge that most victims were poor, rural, and ethnically targeted women with limited access to medical or legal support. While much of the accountability for these crimes lies with international criminal law, the disparities in who can access protection also reveal an international humanitarian law gap: the law formally protects all civilians, but it does not ensure that those facing intersecting disadvantages can meaningfully benefit from that protection. This is further reflected in post-conflict processes, where reparation schemes often overlook classbased barriers to justice. 90 Furthermore, while the jurisprudence marked a turning point in the recognition of sexual violence, it did not challenge the structural premise of international humanitarian law that treats rape primarily as an exceptional harm done to women, rather than a method of warfare embedded in patriarchal and racialised systems. This is relevant to international humanitarian law because the way sexual violence is conceptualised, at the normative level, shapes how 85

Crenshaw K, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ (1989) 1989 University of Chicago Legal Forum. 86 G Maučec, ‘The International Criminal Court and the Issue of Intersectionality—A Conceptual and Legal Framework for Analysis’ (2021) 21 International Criminal Law Review 1. 87 ibid. 88 Human Rights Watch, Shattered Lives: Sexual Violence during the Rwandan Genocide and its Aftermath (Human Rights Watch/FIDH, 24 Sept 1996) <https://www.hrw.org/reports/1996/WR96/Africa08.htm#P599_141723>accessed 2 November 2025. 89 A Peterman, T Palermo and C Bredenkamp, ‘Estimates and Determinants of Sexual Violence against Women in the Democratic Republic of Congo’ (2011) 101 American Journal of Public Health 1060. 90 Shireen Hassim, Women’s Organizations and Democracy in South Africa: Contesting Authority (University of Wisconsin Press, 2006).

protection obligations are interpreted and implemented during conflict. Even the United Nations Security Council Resolution S/RES/1820, which established rape as a war crime, crime against humanity, or act of genocide, reinforces a universalised image of the ‘female victim.’ 91It does so without interrogation of how conflict reshapes hierarchies among women, for example, by making poor, rural, or minority women disproportionately vulnerable to sexual violence and far less able to access protection or assistance. Intersectional feminist scholars have therefore argued that, while the ICTR and ICTY produced doctrinal progress, they also institutionalised a ‘single-axis feminist victory.’ Gender was fully recognised, but only through a framework that treated women as a homogenous category.92 For international humanitarian law, the key takeaway is that the protection of civilians during armed conflict must move beyond broad gender categories to acknowledge why certain women, and other marginalised individuals, face heightened risk and unequal access to justice. B. Case studies of intersectional harm While the jurisprudence of the ICTR and ICTY marked the first formal legal recognition of conflict-related sexual violence, it did not fully account for how gendered harms are produced through the intersection of identity categories such as ethnicity, religion, and class. The following case studies demonstrate that the most extreme forms of violence against women in conflict are not exclusively gender-based but gendered through other vectors of power. These examples expose the limits of a protection framework that treats ‘women’ as a unitary category, and they illustrate why intersectionality is not a theoretical luxury but a necessary analytical tool for international humanitarian law. In Rwanda, sexual violence was not only a tool of individual humiliation but a part of genocidal strategy that weaponised women’s reproductive capacity. Testimonies from the 1994 genocide indicate that perpetrators explicitly stated that the purpose of rape was to “produce Hutu children”, thereby eliminating Tutsi lineage through enforced pregnancy. 93 This reflects what feminists have coined as reproductive violence: the use of biological and social control over women’s bodies to achieve political and ethnic domination.

UN Security Council, Resolution 1820 (2008) UN Doc S/RES/1820 (19 June 2008). Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law (Melland Schill Classics in International Law, 2000). 93 C S Mibenge, ‘Sex and International Tribunals: The Erasure of Gender from the War Narrative’ (2013) Sex and International Tribunals: The Erasure of Gender from the War Narrative 1. 92

Those with lighter skin, associated with the Tutsi phenotype, were often singled out for prolonged captivity and enslavement. Class stratification further shaped vulnerability: rural women lacking social mobility were disproportionately subjected to public rape, group rape and coercive impregnation, while urban women were more likely to be kept in private sexual captivity by militia commanders. International humanitarian law currently struggles to address such intersecting risks, highlighting the need for protections that consider ethnicity, class, and gender together. The ICTR’s Akayesu judgment acknowledged rape as genocide, but it did not articulate the reproductive dimension of the crime in intersectional terms. The harm was framed as ‘rape of Tutsi women,’ but its genocidal purpose was simultaneously ethnic, gendered, and biological. Post-conflict reparation schemes compensated rape survivors as individuals but did not recognise the community-wide destruction resulting from forced maternity, HIV infection, or the subsequent ostracisation of ‘children of rape.’ Women in Bosnia experienced violence that was similarly gendered and religiously targeted. In Foca, women and girls, primarily Bosniak Muslims, were detained in rape camps where sexual violence functioned both as terror and as a mechanism of cultural displacement. The language of ‘ethnic cleansing’ concealed the central role of forced impregnation, which aimed to impose Serbian ethnic lineage on Muslim women. 94 The violence was not only sexual, but ideological: by destroying the bodily integrity of Muslim women, perpetrators sought to destroy Muslim cultural and religious identity and family structure. The ICTY judgment in Kunarac recognised rape as a crime against humanity, but again the tribunal described the victims only as ‘women,’ leaving their religious and ethnic markings legally silent. This silence demonstrated how international criminal law recognises genderbased violence while simultaneously abstracting women from the socio-political structures that made them targets. Feminist scholars have noted that this reinforces a Eurocentric assumption that gender is the primary axis of harm, while ethnicity or religion are merely context rather than causally constitutive. Intersectional erasure in Bosnia also manifested in post-war stigma. Women who bore children as a result of rape were ostracised by their own communities because of the children’s ethnic-religious identity. International legal discourse celebrated the tribunal’s doctrinal

I Skjelsbæk, ‘Victim and Survivor: Narrated Social Identities of Women Who Experienced Rape During the War in Bosnia-Herzegovina’ (2006) 16 Feminism & Psychology.

achievements, yet failed to address these downstream harms, many of which were not recognised as compensable under victim reparation schemes. C. Women as agents, not just victims The ongoing portrayal of women in armed conflict as victims of the violence of armed conflict is a prevalent aspect of both international humanitarian law and human rights advocacy.95 While the harms that these women go through are severe, this discursive focus obscures an equally important reality. Women also participate in war as combatants, recruiters, strategists, informants, financiers, commanders, and, in some cases, perpetrators of violence.96 The legal and political erasure of these roles reinforces a paternalistic narrative of female vulnerability, which not only misrepresents women’s lived realities in contemporary conflicts but also undermines the development of gender-competent legal frameworks by leading to rules and interpretations that assume women are only civilians in need of protection. For example, the continued lack of guidance in international humanitarian law on the treatment of female combatants, including on detention conditions, reproductive healthcare, or protection from sexual violence in captivity, reflects an assumption that women do not take part directly in hostility.97 Women have been active in armed groups across multiple conflicts, like Liberia, Sierra Leone, Colombia, Sri Lanka, Sudan, Nepal, and Afghanistan, yet they remain largely invisible in legal and policy discourse. The image of the combatant in humanitarian law is ‘inherently gendered male,’ meaning women’s participation is treated as an anomaly rather than structurally relevant.98 This invisibility has material consequences, such as disarmament, demobilisation, and reintegration programmes excluding women because they do not ‘look’ like fighters, do not possess weapons at the moment of surrender, or are classified by their own armed groups as ‘wives,’ ‘camp followers,’ or ‘dependants’ rather than soldiers. 99

International Committee of the Red Cross (ICRC), Women Facing War (Geneva, 2001) <https://www.icrc.org/sites/default/files/external/doc/en/assets/files/other/icrc_002_0798_women_facing_war.p df> accessed 2 November 2025. 96 ibid. 97 N Raju and L Bruun, ‘Integrating Gender Perspectives into International Humanitarian Law’ (SIPRI Insights on Peace and Security 2023/08, August 2023) <https://www.sipri.org/sites/default/files/202308/insights_integrating_gender_perspectives_into_ihl.pdf> accessed 2 November 2025. 98 ibid. 99 International Committee of the Red Cross (ICRC), Women Facing War (Geneva, 2001) <https://www.icrc.org/sites/default/files/external/doc/en/assets/files/other/icrc_002_0798_women_facing_war.p df> accessed 2 November 2025.

This exclusion is not accidental. It reflects a legal system built on the assumption that combativeness is the realm of men and that women, even when armed, are engaging in an abnormal deviation from their ‘natural’ role. In Colombia, nearly 40 per cent of FARC fighters were women, yet post-conflict reintegration initiatives treated them as appendages to male combatants, rather than as autonomous political actors. The result is that women often face double marginalisation. First, as fighters denied recognition and benefits, and second, as women ostracised by communities that view their participation in violence as a violation of gender norms.100 The lack of combatant recognition leaves them with fewer rights and protections and fewer pathways to reintegration than their male counterparts. The legal and social response to women who commit violence further exposes the gendered assumptions built into international law. When women perpetrate atrocities, they tend to be explained in one of the following ways: as victims of coercion, as psychologically damaged or sexually abused, or as aberrations from femininity rather than as political actors. This dynamic was seen in international reactions to female guards at Abu Ghraib, genocidaires in Rwanda, and torturers in Sierra Leone, where their violence was sensationalised as shocking because it violated idealised femininity, an assumption that ultimately risks distorting legal accountability by framing women as inherently less responsible, less agentic, and outside the categories that international humanitarian law use to assess individual liability. The ICTR provides a clear example of Pauline Nyiramasuhuko, a former Minister for Family and Women’s Affairs, who was the first woman convicted of genocide and incitement of rape.101 Yet commentary around her case focuses less on legal analysis and more on her ‘monstrous betrayal’ of womanhood. Men who commit mass sexual violence are analysed structurally, as part of militarised masculinity, while women are framed as pathological outliers. This moral asymmetry is directly relevant to international humanitarian law: it proves how gendered assumptions shape the interpretation of who counts as a combatant or a civilian, and therefore influence how international humanitarian law categories are applied in practice. When female perpetrators are treated as aberrations rather than actors embedded in armedgroup dynamics, international humanitarian law’s supposedly neutral categories fail to capture the realities of participation in conflict.

100

H Durham and K O’Byrne, ‘The Dialogue of Difference: Gender Perspectives on International Humanitarian Law’ (2010) 92 International Review of the Red Cross. 101 Prosecutor v Nyiramasuhuko et al. (Butare) (Appeal Chamber), ICTR‑98‑42 (International Criminal Tribunal for Rwanda, 2015).

Such narratives have legal implications, since women’s participation in armed groups is minimised in legal doctrine, which assumes that women require protection rather than accountability. The result is a paradox, because women fighters are denied agency when they are forced into it. The law thus reproduces a patriarchal structure in which women are either ‘victims to be saved’ or ‘monsters who failed at femininity’ but rarely subjects of political violence in their own right. At the core of this problem is the legal distinction between combatant and civilian, a distinction that is foundational to international humanitarian law. The category of ‘civilian women’ is assumed by default. The burden of proof is on women to demonstrate the status of combatant, while men are presumed combatants unless proven otherwise. 102 Recognition as a combatant confers legal advantages under international humanitarian law, most notably prisoner of war (POW) status, lawful-combatant immunity for acts committed in accordance with the law, and entitlement to specific protection upon capture.103 This inverse presumption reflects the gendered architecture of international humanitarian law: masculinity is aligned with agency, violence, and threat, while femininity is aligned with dependency, passivity, and protection. The assumption that women are always vulnerable produces a flattening effect in humanitarian law, since it erases the risks faced by female combatants, such as torture, sexualised reprisals, execution, and denial of detainee rights, while erasing the agency of noncombatant women whose political, economic, or resistance roles fall outside the legal dimension. VI.

An intersectional framework for international humanitarian law A. Why does an intersectional approach matter? An intersectional approach moves beyond the inclusion of gender as a mere policy

consideration. Instead, it examines how overlapping systems of power and identity, such as gender, race, age, and class, produce differentiated experiences of harm and protection. This type of approach is vital to the protection of women under international humanitarian law because it moves beyond the assumption that ‘women’ form a single, homogenous category of

102

International Committee of the Red Cross (ICRC), Women Facing War (Geneva, 2001) <https://www.icrc.org/sites/default/files/external/doc/en/assets/files/other/icrc_002_0798_women_facing_war.p df> accessed 2 November 2025. 103 Geneva Convention relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135, art 21.

victims. Women do not experience these protections in the same way that men do. Specifically, displaced and disabled women, as well as adolescent girls, often face heightened barriers to safety, assistance, and accountability. By highlighting the diversity of women’s experiences, intersectionality exposes how protection frameworks that treat gender as a uniform identity often overlook the compounded impacts of intersecting vulnerabilities. In its current form, international humanitarian law largely adopts a gender-neutral or gender-binary framework that assumes uniform experiences of harm across populations. This limitation becomes evident in the context of the United States’ drone strikes in Afghanistan, where there have been reports of the profiling of ‘military-age males’.104 There are some indications that the United States is using ‘maleness’, meaning the qualities of being a man or a boy, as a signifier of militancy. According to a 2012 New York Times report, when accounting for the number of casualties from armed drone strikes, the US government reportedly records “all military-age males in a strike zone as combatants … unless there is explicit intelligence posthumously proving them innocent.”105 It indicates that sex can serve as a primary marker of identity, representing a form of gender-based violence. Such practices not only reinforce gender essentialism but also entrench problematic associations between masculinity and violence. 106 While gender-based violence is typically understood as targeting women or those perceived as vulnerable, in this context, men’s presumed status as combatants renders them vulnerable precisely because of the qualities that identify them as men, highlighting a reverse or less discussed form of gendered harm. This example demonstrates that gender cannot be considered in isolation, as in this case, gender and age were both relevant identity markers that resulted in the targeting of individuals. An intersectional perspective within international humanitarian law therefore enables more accurate assessments of vulnerability, responsibility and protection in armed conflict.

104

N Raju and L Bruun, ‘Integrating Gender Perspectives into International Humanitarian Law’ (SIPRI Insights on Peace and Security 2023/08, August 2023) <https://www.sipri.org/sites/default/files/202308/insights_integrating_gender_perspectives_into_ihl.pdf> accessed 2 November 2025. 105 Jo Becker and Scott Shane, ‘Secret “Kill List” Proves a Test of Obama’s Principles and Will’ New York Times (29 May 2012). 106 Reaching Critical Will & Article 36, Sex and Drone Strikes: Gender and Identity in Targeting and Casualty Analysis (October 2014) <https://www.article36.org/wp-content/uploads/2014/10/sex-and-drone-strikes.pdf> accessed 2 November 2025.

Furthermore, Charli Carpenter, while conducting research on the Bosnian conflict, interviewed a representative of the UN Office for the Coordination of Humanitarian Affairs (OCHA), asking if adult men could be considered vulnerable. She was told that: “It’s really not in the general definition of being vulnerable, when you’re a healthy, strong 20-year-old male. Commonly when you speak of vulnerability you have the image of women, children, and the elderly. The idea of a 20-year-old man who can’t defend himself [laughter] he can just run away and join the army or join the rebel force.”107 The OCHA representative thus implied that men’s access to protection is contingent upon their potential for violence, suggesting that the resolution of male precarity is tied to a militarised expression of masculinity. 108 This reinforces the broader argument that, while the principle of civilian immunity does not discriminate based on gender, its practical application by humanitarian and military actors remains deeply gendered. 109 B. Implementing intersectionality in international humanitarian law Implementing an intersectional approach within international humanitarian law requires moving beyond merely recognising gender as a category of analysis, towards a deeper understanding of how overlapping social identities shape experiences of harm and protection.110 First, the interpretation of existing legal norms must incorporate intersectional reasoning. For instance, while Article 27 of the Fourth Geneva Convention protects ‘women’, it does not account for the compounded risks faced by ethnic or religious minority women. This includes examining how conventional international humanitarian rules, such as the protections under the Geneva Conventions, are insufficient for populations whose vulnerabilities arise from multiple axes of identity, rather than gender alone. 111 For example, women from ethnic or

107

R Charli Carpenter, ‘“Women, Children and Other Vulnerable Groups”: Gender, Strategic Frames and the Protection of Civilians as a Transnational Issue’ (2005) 49 International Studies Quarterly 295 <https://fbaum.unc.edu/teaching/articles/Carpenter‑ISQ‑2005.pdf> accessed 2 November 2025. 108 Sarah Shoker, ‘Military-Age Males in U.S. Counterinsurgency and Drone Warfare’ (PhD thesis, McMaster University,2018) < https://prod-ms-be.lib.mcmaster.ca/server/api/core/bitstreams/f34055f8-28a3-45ac-a5649cf900fc8fff/content > accessed 2 November 2025. 109 ibid. 110 A N Davis, ‘Intersectionality and International Law: Recognizing Complex Identities on the Global Stage’ (2015) 28 Harvard Human Rights Journal 205 <https://journals.law.harvard.edu/hrj/wpcontent/uploads/sites/83/2009/09/intersectionality-and-international-law-recognizing-complex-identities-on-theglobal-stage.pdf> accessed 2 November 2025. 111 ibid, 9.

religious minority groups may be disproportionately targeted in armed conflict, yet current international humanitarian law protections often treat women as a homogenous category, focusing on gender alone rather than addressing how intersecting identities compound their vulnerability, even though international criminal law may prosecute such harms under different categories of crimes.112 Second, institutional reform is necessary within organisations responsible for implementing and enforcing international humanitarian law, including military forces, humanitarian agencies, and international and national legal bodies, like the International Committee of the Red Cross and UN Peacekeeping Missions. This involves training military personnel, humanitarian actors, and legal practitioners to identify and respond to intersectional harms, including the development of operational guidelines that account for multiple forms of marginalisation. Institutions must also ensure that data collection and reporting mechanisms disaggregate information by sex, ethnicity, class, and other relevant factors to inform targeted protection strategies. Third, accountability mechanisms must evolve to recognise the intersectional nature of harms. International criminal tribunals and courts should assess crimes in ways that consider how gendered violence intersects with other forms of discrimination, rather than evaluating each axis of identity separately. 113 This approach would ensure that perpetrators of intersectionality targeted crimes are held accountable for the full scope of harm inflicted, including harms that may not be captured by a single-axis analysis. The aim is not harsher punishment, but recognition of the full harm suffered by victims with overlapping vulnerabilities. This recognition is fundamental to international humanitarian law, as it determines how violations are identified and protections are effectively applied. Finally, doctrinal development is essential for integrating intersectional analysis into international humanitarian law. Legal scholars and practitioners must articulate principles that recognise complex identities, ensuring that normative frameworks account for the overlapping and mutually reinforcing effects of discrimination in conflict settings. This includes revising commentaries, guidelines, and interpretative tools to make intersectional considerations explicit, rather than implicit. 114 This includes concrete priorities such as updating the ICRC

112

ibid, 10. ibid, 13 114 ibid, 16. 113

Commentaries on the Geneva Conventions and operational guidance for civilian protection to address compounded risks faced by minority women. In sum, implementing intersectionality within international humanitarian law demands a comprehensive strategy of encompassing interpretation, institutional reform, accountability, and doctrinal development. 115 Such a framework allows for a more accurate and equitable assessment of harm and ensures that legal protections reflect the diverse and interlocking vulnerabilities faced by populations in armed conflict. VII.

Conclusion

International humanitarian law was conceived as a universal framework to mitigate the suffering caused by armed conflict, yet its universality has long been constrained by the implicit assumption of a male subject of war. The gender neutrality of its language masks deep structural biases that shape both its interpretation and application. While the progressive recognition of gender-based violence in international criminal jurisprudence, such as through the Akayesu and Kunarac cases, represents significant doctrinal advancement, these developments have not translated into intersectional reasoning within international humanitarian law itself. As a result, international humanitarian law continues to treat ‘women’ as a monolithic category, overlooking how race, class, sexuality, and other social factors compound vulnerability and shape access to protection and justice. An intersectional framework challenges this limitation by illuminating how systems of power interact to produce differentiated experiences of harm. It reveals that no woman experiences armed conflict solely through her gender, but through the simultaneous influence of multiple and overlapping identities. This recognition demands that protection frameworks evolve beyond the binary of male combatant and female victim to account for the full spectrum of agency, participation, and marginalisation experienced by all individuals in conflict. Integrating intersectionality into international humanitarian law, therefore, requires more than rhetorical inclusivity, since it calls for structural transformation. This includes reinterpreting existing legal provisions through an intersectional lens, embedding intersectionality into institutional practices, reforming accountability mechanisms to capture complex harms, and revising doctrinal commentaries to make gender and identity central to humanitarian protection. Only through these measures can international humanitarian law

115

ibid.

move closer to its stated purpose, to protect all persons affected by war with equal dignity and without discrimination. Ultimately, adopting an intersectional approach is not a matter of legal necessity, but it allows international humanitarian law to confront the realities of modern conflict with greater precision, empathy, and fairness. By acknowledging the plurality of women’s experiences, intersectionality offers a path towards a more inclusive, just, and genuine humanitarian legal order.

The Principle of Proportionality in Drone Warfare By Leon Paladinić* Abstract A key principle of international humanitarian law (IHL) is the principle of proportionality, which requires military commanders to make an ex ante legal determination that the projected civilian harm will not be disproportionate to the expected military advantage. However, this principle is severely strained in contemporary conflict, especially in the context of drone warfare and urban operations. The current legal application of the Principle of Proportionality relies on a single-strike assessment, which ignores the cumulative, catastrophic damage inflicted on vital civilian life-support systems. Furthermore, drones introduce a risk-transfer bias that can lower the moral and legal threshold for tolerable civilian losses. Additionally, the use of sophisticated AI-targeting algorithms, by obscuring the decision-making process, creates an accountability gap. In order to maintain the integrity and effectiveness of the rule, the IHL framework requires substantial doctrinal and procedural revision to incorporate measures addressing cumulative harm and to guarantee Meaningful Human Control (MHC).

* L.L.B. Candidate, International and European Law Programme, The Hague University of Applied Sciences.

Introduction The ecological, socioeconomic, and geopolitical challenges that have emerged in the

early twenty-first century have put tremendous pressure on the existing framework of international law.1 One of the most significant difficulties facing International Humanitarian Law (IHL), which regulates the conduct of hostilities, is the rapid development of remote and autonomous forms of combat. 2 Advocates of Unmanned Aerial Vehicles (UAVs), commonly known as drones, have praised their use for improving battlefield precision and reducing danger to attacking forces. 3 However, the deployment of this technology in highly complex urban environments, such as the Gaza Strip, reveals a serious doctrinal crisis: the principal rule intended to protect civilians during hostilities is structurally ill-suited to the character of modern remote warfare.4 The principle of proportionality serves as the legal foundation for civilian protection in the conduct of hostilities. 5 This doctrine attempts to reconcile the competing imperatives of military necessity and humanitarian restraint. 6 In general, IHL recognises four interrelated principles governing the legitimacy of military force: distinction, proportionality, military necessity, and precaution. 7 First, an attack must pursue a legitimate military objective; second, there must be a rational connection between the means employed and the objective sought; third, the chosen measure must be the least harmful means available; and fourth, the incidental harm caused must not be excessive in relation to the anticipated military advantage. 8 Under the principle of proportionality, commanders are expressly prohibited from launching attacks where the expected incidental loss of civilian life would be excessive in relation to the concrete and direct military advantage anticipated, as codified in Article 51(5)(b) 1

Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (2nd edn, Cambridge University Press 2005). 2 Neil Davison, ‘A legal perspective: Autonomous weapon systems under international humanitarian law’ in UN Office for Disarmament Affairs, Perspectives on Lethal Autonomous Weapon Systems (UNODA Occasional Papers No 30, 2017) 5. 3 International Committee of the Red Cross (ICRC), ‘Drones: how does law protect in war?’ in How Does Law Protect in War? (ICRC Online Casebook, updated 2023) <https://casebook.icrc.org/case-study/drones-how-does-law-protect-war> accessed 1 December 2025. 4 Michael N Schmitt, ‘Drone attacks under the jus ad bellum and jus in bello: clearing the "fog of law"’ in Michael N Schmitt, Louise Arimatsu and Tim McCormack (eds), Yearbook of International Humanitarian Law 2010 (TMC Asser Press 2011) 311. 5 Laurent Gisel (ed), The Principle of Proportionality in the Rules Governing the Conduct of Hostilities under International Humanitarian Law (Report of the International Expert Meeting, Quebec, 22–23 June 2016, ICRC 2018). 6 Jean Pictet, Development and Principles of International Humanitarian Law (Martinus Nijhoff 1985). 7 International Committee of the Red Cross (ICRC), ‘Fundamental principles of international humanitarian law’ in How Does Law Protect in War? (ICRC Online Casebook, updated 2024) <https://casebook.icrc.org/a_to_z/glossary/fundamental-principles-ihl> accessed 1 December 2025. 8 William H Boothby, The Law of Targeting (Oxford University Press 2012).

of Additional Protocol I. 9 The International Criminal Tribunal for the Former Yugoslavia (ICTY) further clarified that proportionality must be assessed from the perspective of a “reasonably well-informed person” acting on the basis of information reasonably available at the time of the attack.10 This establishes proportionality as an ex ante legal obligation, rather than a retrospective moral evaluation. 11 Responsibility under IHL lies primarily with those who plan, authorise, and decide upon attacks, rather than those who merely carry them out or design the relevant technologies. 12 Military commanders, therefore, occupy a central legal position: they are required to assess intelligence, evaluate expected civilian harm, and ensure compliance with precautionary duties.13 For that reason, this analysis focuses on commanders as the primary legal actors responsible for the proportionality assessment. The validity and effectiveness of proportionality are increasingly undermined by the operational realities of drone warfare. The legal framework treats each strike as an isolated event, assessed independently from the larger operational context. 14 This single-strike methodology fails to capture the cumulative destruction inflicted on civilian life-support systems such as water infrastructure, electricity networks, and healthcare facilities through persistent military campaigns.15 In parallel, the spatial and psychological detachment inherent in remote operations transfers risk away from the attacking party, creating what scholars have described as a risk-transfer bias that lowers the threshold of tolerable civilian harm. 16 Furthermore, the increasing reliance on algorithmic targeting and artificial intelligence introduces an accountability deficit, as decisions are obscured by technical complexity and rendered difficult to audit after the fact. 17

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (Additional Protocol I) art 51(5)(b). 10 Prosecutor v Galić (Judgment) IT-98-29-T (ICTY, 5 December 2003) [58]. 11 Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC and Martinus Nijhoff 1987). 12 Davison (n 2) 20–23. 13 Robin Geiß and Michael Siegrist, ‘Has the armed conflict in Afghanistan affected the rules on the conduct of hostilities?’ (2011) 93(881) International Review of the Red Cross 11. 14 Ian Henderson, The Contemporary Law of Targeting: Military Objectives, Proportionality and Precautions in Attack under Additional Protocol I (Martinus Nijhoff 2009) 185–210. 15 Stefan Oeter, ‘Means and methods of warfare’ in Dieter Fleck (ed), The Handbook of International Humanitarian Law (3rd edn, Oxford University Press 2013). 16 Grégoire Chamayou, A Theory of the Drone (Janet Lloyd tr, New Press 2015). 17 International Committee of the Red Cross (ICRC), Artificial Intelligence and Machine Learning in Armed Conflict: A Human-Centred Approach (ICRC Position Paper, 2021) <https://www.icrc.org/en/document/artificial-intelligence-and-machine-learning-armed-conflict> accessed 1 December 2025.

These shortcomings necessitate interpretive and procedural reform in order to preserve the integrity of IHL. 18 To examine the impact of drone warfare on proportionality in practice, this paper uses the Gaza Strip as a case study. Gaza represents an extreme test environment due to persistent surveillance, advanced targeting systems, and high civilian density. 19 The analysis proceeds in three stages. First, it outlines the legal structure of proportionality under treaty law and international jurisprudence. Second, it explains how drone warfare distorts legal judgment through cumulative harm, risk-transfer bias, and algorithmic opacity. Third, it evaluates the Gaza conflict as empirical evidence of doctrinal strain and assesses the necessity of reform through cumulative-harm analysis and the doctrine of Meaningful Human Control (MHC). II.

The principle of proportionality in the IHL The principle of proportionality is a foundational rule within International

Humanitarian Law (IHL) and forms part of the broader Law of Armed Conflict (LOAC). 20 It does not constitute the law itself, but rather operates as one of its core normative constraints, regulating how force may lawfully be used once hostilities have begun. 21 The principle functions to balance military necessity against humanitarian considerations, ensuring that the conduct of hostilities remains legally and morally constrained. 22 In doctrinal terms, proportionality seeks to reconcile two competing imperatives: the pursuit of legitimate military objectives on the one hand, and the protection of civilians and civilian objects on the other. 23 It is rooted in the understanding that even lawful military force is not unlimited, and that the pursuit of military advantage does not justify all forms or levels of harm.24 Accordingly, proportionality operates as a restraining mechanism that prevents excessive civilian suffering, even in the context of otherwise lawful attacks. 25

Noam Lubell and Nathan Derejko, ‘A global battlefield? Drones and the geographical scope of armed conflict’ (2013) 11 Journal of International Criminal Justice 65. 19 Human Rights Council, ‘Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel’ UN Doc A/HRC/56/26 (12 June 2024). 20 Laurent Gisel (ed), The Principle of Proportionality in the Rules Governing the Conduct of Hostilities under International Humanitarian Law (Report of the International Expert Meeting, Quebec, 22–23 June 2016, ICRC 2018). 21 Jean Pictet, Development and Principles of International Humanitarian Law (Martinus Nijhoff 1985) 62–63. 22 Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (3rd edn, Cambridge University Press 2016) 132–135. 23 International Committee of the Red Cross (ICRC), ‘Fundamental principles of international humanitarian law’ in How Does Law Protect in War? (ICRC online casebook, updated 2011) <https://casebook.icrc.org/law/fundamentals-ihl\> accessed 1 December 2025. 24 William H Boothby, The Law of Targeting (Oxford University Press 2012) 70–74. 25 Enzo Cannizzaro, ‘Proportionality in the law of armed conflict’ in Andrew Clapham and Paola Gaeta (eds), The Oxford Handbook of International Law in Armed Conflict (Oxford University Press 2014) 332–352.

The standards governing proportionality do not operate in isolation, but interact closely with the other cardinal principles of IHL, notably distinction, military necessity, and precaution.26 Together, these principles structure the legal framework regulating the conduct of hostilities.27 Compliance with proportionality is therefore indispensable to civilian protection, particularly in contemporary conflicts increasingly fought in densely populated urban environments, where the risk of incidental harm is significantly elevated. 28 A) The treaty architecture of proportionality under AP I Arts 51(5)(b) and 57 The formal expression of the proportionality principle in conventional international law is found in Article 51(5)(b) of Additional Protocol I (AP I) to the 1949 Geneva Conventions, a provision widely regarded as reflecting customary international law. 29 This rule prohibits attacks that may be expected to cause incidental loss of civilian life, injury to civilians, or damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated. 30 Rather than evaluating harm retrospectively, the rule focuses on what may reasonably be expected at the time of the attack, thereby establishing an ex ante standard that lies at the core of modern targeting law. 31 Under this standard, the commander is required to make a legal assessment immediately before or during the attack, on the basis of information reasonably available at that moment. 32 The requirement that the anticipated military advantage be both concrete and direct narrows the category of permissible justifications and excludes advantages that are purely political, psychological, economic, financial, social, or moral in nature. 33 This limitation is especially relevant in drone operations, which are often defended in terms of deterrence, signalling, or

Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, vol I: Rules (Cambridge University Press 2005) Rules 1, 14–21, 47. 27 Dieter Fleck (ed), The Handbook of International Humanitarian Law (4th edn, Oxford University Press 2021) ch 8. 28 Michael Bothe, Karl Josef Partsch and Waldemar A Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (2nd edn, Martinus Nijhoff Publishers 2013) 305–310. 29 Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, vol I: Rules (Cambridge University Press 2005) Rule 14. 30 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3, art 51(5)(b). 31 Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC 1987) paras 2207–2215. 32 Wolff Heintschel von Heinegg, ‘Proportionality and Collateral Damage’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford Public International Law, online edn, Oxford University Press 2015) para 18 <https://opil.ouplaw.com\> accessed 1 December 2025. 33 Sandoz, Swinarski and Zimmermann (n 31) paras 2208–2212.

long-term strategic pressure, considerations that fall outside the proportionality calculus under IHL.34 Article 57 AP I complements and operationalises proportionality by imposing precautionary obligations. It requires those who plan or decide upon attacks to take constant care to spare civilians and civilian objects. 35 In practical terms, this means that a commander considering a drone strike in a densely populated urban environment must verify the military objective, select means and methods of attack that minimise incidental harm, and consider feasible alternatives that reduce risk to civilians. 36 Article 57(2)(a)(i) obliges decision-makers to do “everything feasible” to ensure compliance with proportionality, a relative standard determined by what is practicable under the prevailing military and humanitarian circumstances.37 Where it becomes apparent that an attack would be expected to cause excessive incidental harm, it must be cancelled or suspended, even once it has commenced. 38 B) Proportionality as a legal balancing test: military necessity and command discretion Proportionality operates through a balancing exercise between anticipated military advantage and expected incidental civilian harm. This comparative assessment lies at the heart of the proportionality test and represents one of the most complex aspects of IHL in practice.39 It requires the commander, often operating under conditions of uncertainty, to compare two incommensurable values: military gain and humanitarian cost. 40 The rule functions as a limitation on military necessity. While military necessity permits the use of force required to defeat the enemy, it does not authorise actions otherwise prohibited by international law.41 Proportionality operates in tandem with this concept: even where a target is lawful and the means used are not otherwise prohibited, an attack must be called off if the

Michael N Schmitt, ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’ (2010) 50 Virginia Journal of International Law 795, 828–830. 35 Protocol I (n 30) art 57(1). 36 Jean-François Quéguiner, ‘Precautions under the Law Governing the Conduct of Hostilities’ (2006) 88 International Review of the Red Cross 793, 808–812. 37 Protocol I (n 30) art 57(2)(a)(i). 38 Protocol I (n 30) art 57(2)(b); Henckaerts and Doswald-Beck (n 29) Rule 19. 39 Emanuela-Chiara Gillard, Proportionality in the Conduct of Hostilities: The Incidental Harm Side of the Assessment (Chatham House, December 2018) 9–13. 40 David Kretzmer, ‘Proportionality in Jus ad Bellum’ (2013) 24 European Journal of International Law 235, 259– 262. 41 Dieter Fleck (ed), The Handbook of International Humanitarian Law (4th edn, Oxford University Press 2021) 71–76.

incidental harm to civilians is excessive. 42 In this way, proportionality restricts the scope of military necessity by subjecting it to humanitarian constraint. 43 Because of this complexity, proportionality is assessed from the perspective of a reasonable military commander. That commander must rely on information from all sources reasonably available at the time, including intelligence assessments, surveillance data, and operational reports.44 The jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY) confirms that responsibility may arise where a “reasonably well-informed person, making reasonable use of information available, could have expected excessive civilian casualties to result from the attack.” 45 This standard governs ex post legal review of targeting decisions, even when those decisions were taken remotely and mediated through advanced technological systems. At the same time, the proportionality assessment remains deeply subjective and resistant to quantification. 46 The concept of “excessiveness” is intentionally open-textured, granting commanders a fairly broad margin of judgment provided they act in good faith and on a reasonable evaluation of circumstances 47 Drone warfare magnifies the risks inherent in this discretion: physical distance, absence of reciprocal danger, and operational tempo can subtly lower the threshold at which civilian harm is tolerated, even where the formal legal test remains unchanged.48 C) Urban warfare and the doctrinal limits of proportionality Proportionality faces its greatest strain in densely populated urban environments such as the Gaza Strip, where civilian life and military objectives are tightly interwoven. 49 In such settings, drone warfare exacerbates three doctrinal stresses: dual-use infrastructure and reverberating harm, foreseeability of secondary effects, and the under-weighting of civilian costs.50 42

Protocol I (n 30) arts 51, 57. Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (3rd edn, Cambridge University Press 2016) 119–123. 44 Ian Henderson and Kate Reece, ‘Proportionality under International Humanitarian Law: The “Reasonable Military Commander” Standard and Reverberating Effects’ (2018) 51 Vanderbilt Journal of Transnational Law 835. 45 Prosecutor v Galić (Judgment) IT-98-29-T (ICTY, Trial Chamber, 5 December 2003) para 58. 46 Gillard (n 39) 21–25. 47 Women’s International League for Peace and Freedom, International Disarmament Institute (Pace University) and Article 36, The Humanitarian Impact of Drones (WILPF/Article 36 2017). 48 Laurent Gisel (ed), The Principle of Proportionality in the Rules Governing the Conduct of Hostilities under International Humanitarian Law (Report of the International Expert Meeting, Quebec, 22–23 June 2016, ICRC 2018) 28–30. 49 Grégoire Chamayou, A Theory of the Drone (Janet Lloyd tr, New Press 2015). 50 ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts (32nd International Conference of the Red Cross and Red Crescent, ICRC 2015) 42–53. 43

1. Dual-Use Objects and Reverberating Harm Urban infrastructure often serves both civilian and military purposes. Electrical networks, communications systems, and water facilities may simultaneously support civilian survival and military operations. 51 Where a drone strike disables such a dual-use object, the immediate military harm may appear limited, yet the indirect impact on civilian life may be catastrophic. These repercussions, often described as reverberating harm, must be included in the proportionality assessment. 52 Damage to a power station, for example, may foreseeably paralyse hospitals and water purification systems, thereby increasing disease and displacement. Even where such effects occur through a chain of causation, they remain relevant where reasonably foreseeable at the time of the attack. 53 2. Foreseeability of Secondary Effects A commander’s obligation extends beyond immediate casualties to foreseeable consequences arising from the attack. 54 Drone surveillance technology enhances commanders’ capacity to identify such risks.55 Where persistent strikes predictably degrade access to water, sanitation, or healthcare, resulting in humanitarian collapse must be integrated into the ex ante analysis. Secondary harm is not a legally irrelevant by-product when it is foreseeable. 56 3. Unaccounted Civilian Costs The weight accorded to civilian harm depends on its severity and impact on survival. Damage to hospitals, housing, and water systems must be assigned greater legal weight than economic inconvenience or material loss.57 In sustained drone campaigns, however, displacement, infrastructure collapse, and livelihood destruction are often undervalued in targeting metrics that prioritise casualty counts or monetary damage. 58 This produces a gap between the holistic legal standard and operational assessments of harm.

Isabel Robinson and Ellen Nohle, ‘Proportionality and Precautions in Attack: The Reverberating Effects of Using Explosive Weapons in Populated Areas’ (2016) 98 International Review of the Red Cross 107–145. 52 ICRC, Urban Services during Protracted Armed Conflict: A Call for a Better Approach to Assisting Affected People (ICRC 2015). 53 Robinson and Nohle (n 51) 149–154. 54 Machiko Kanetake, ‘The Hawija Airstrike: Reverberating Effects on Civilians under International Humanitarian Law’ (2022) 35 Leiden Journal of International Law 735. 55 Mark Zeitoun and Michael Talhami, ‘The Impact of Explosive Weapons on Urban Services: Direct and Reverberating Effects across Space and Time’ (2016) 98 International Review of the Red Cross 53. 56 Bárbara Morais Figueiredo and Katherine Young, Understanding Civilian Harm from the Indirect or Reverberating Effects of the Use of Explosive Weapons in Populated Areas: Strengthening Data Collection to Implement the Political Declaration (UNIDIR and Explosive Weapons Monitor 2024). 57 ICRC, Explosive Weapons with Wide Area Effects: A Deadly Choice in Populated Areas (ICRC 2022). 58 UNIDIR (n 56).

Taken together, these dimensions expose two structural deficiencies: the inability of the proportionality framework to regulate cumulative damage, and the distortion of command judgment created by physical distance from harm. 59 These shortcomings frame the doctrinal critique developed in the following chapters.60 III.

Drone warfare: transformation of the legal assessment Unmanned Aerial Vehicles (UAVs), or drones, represent one of the most consequential

technological shifts in contemporary armed conflict, transforming not only how force is delivered but also how it is legally assessed. 61 While international humanitarian law (IHL) does not prohibit particular weapons per se, it regulates the methods of warfare that weapons enable.62 Drone warfare, marked by persistence, distance, and increasing automation, places exceptional strain on the proportionality framework. 63 As a result, legal scrutiny must address not only the weapon as an object but also the operational architecture that drone technology creates.64 It is this transformation of warfare itself that exposes doctrinal vulnerability within the law.65 This section examines three ways in which drone warfare reshapes proportionality analysis: first, by challenging claims of increased compliance through precision; second, by structurally shifting risk away from the attacker and onto civilians; and third, by undermining accountability through algorithmic opacity. 66 A) Precision Rhetoric vs. Operational Reality A central justification advanced by states employing drones is that UAV technology enhances compliance with IHL through precision. Proponents argue that armed drones equipped with guided munitions, such as Hellfire missiles, and advanced ISR (intelligence, surveillance, and reconnaissance) systems permit more accurate targeting than conventional airpower.67 In principle, this capability is said to strengthen the rules of distinction and 59

Sandoz, Swinarski and Zimmermann (n 33) paras 18–22. Gillard (n 39). 61 Michael N Schmitt and Jeffrey S Thurnher, ‘“Out of the Loop”: Autonomous Weapon Systems and the Law of Armed Conflict’ (2013) 4(2) Harvard National Security Journal 231. 62 William H Boothby, Weapons and the Law of Armed Conflict (2nd edn, Oxford University Press 2016) ch 2. 63 Michael N Schmitt, ‘Drone attacks under the jus ad bellum and jus in bello: clearing the “fog of law”’ in Michael N Schmitt, Louise Arimatsu and Tim McCormack (eds), Yearbook of International Humanitarian Law 2010, vol 13 (TMC Asser Press 2011) 311. 64 Boothby (n 62) 47–52. 65 Schmitt (n 63) 346–350. 66 Neil Davison, ‘A legal perspective: autonomous weapon systems under international humanitarian law’ in Perspectives on Lethal Autonomous Weapon Systems (UNODA Occasional Papers No 30, 2017) 5–23; see also ICRC, Autonomous Weapon Systems: Technical, Military, Legal and Humanitarian Aspects (ICRC 2014). 67 US Department of Defense, Department of Defense Law of War Manual (June 2015, updated May 2016) §§ 2.8, 5.11; Boothby (n 2) 217. 60

precaution by enabling attacks to be directed narrowly at military objectives and timed to minimise civilian presence. 68 This claim is often framed as evidence that drone strikes constitute the “lesser of two evils” when compared to broader aerial bombardment or ground campaigns. 69 However, the assumption that technical accuracy translates into legal compliance is flawed. In practice, the relationship between precision and proportionality is considerably more complex. 70 First, accuracy does not guarantee lawfulness. Even where a drone strikes its intended target, an attack remains unlawful if the anticipated incidental harm is excessive in relation to the concrete and direct military advantage expected. 71 In urban environments, military objectives are frequently embedded within civilian life or located inside dual-use infrastructure.72 Accordingly, precision cannot remedy failures at the level of intelligence collection or target identification. This is particularly evident in the practice of so-called “signature strikes,” in which individuals are targeted on the basis of behavioural patterns rather than confirmed identity.73 Such practices raise acute concerns under the principle of distinction and elevate the risk of unlawful civilian harm, thereby destabilising proportionality analysis. 74 Second, drones possess surveillance capabilities, such as loitering and persistent monitoring, that intensify the legal obligations of those who plan attacks. Continuous ISR substantially increases the burden imposed by Article 57 of Additional Protocol I to take “all feasible precautions.”75 In theory, commanders can delay strikes, verify civilian presence, and select moments of reduced risk.76 Where this capability is under-utilised, or where automated processing displaces reliable human intelligence, failures of precaution may arise. 77 Such

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3 (AP I) arts 48, 57. 69 Michael J Boyle, ‘The Costs and Consequences of Drone Warfare’ (2013) 89(1) International Affairs 1. 70 Schmitt (n 63) 341–346. 71 AP I (n 68) art 51(5)(b). 72 ICRC, Urban Services during Protracted Armed Conflict: A Call for a Better Approach to Assisting Affected People (ICRC 2015). 73 Philip Alston, ‘Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Addendum: Study on Targeted Killings’ UN Doc A/HRC/14/24/Add.6 (28 May 2010) paras 32–38. 74 Nils Melzer, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (ICRC 2009) 46–50. 75 AP I (n 8) art 57; Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law, vol I: Rules (Cambridge University Press 2005) Rules 15–21. 76 Jean-François Quéguiner, ‘Precautions under the Law Governing the Conduct of Hostilities’ (2006) 88(864) International Review of the Red Cross 793. 77 Boothby (n 62) 244–246.

failures are not merely operational; they directly bear upon the legality of the proportionality calculation.78 B) Risk-transfer warfare and the erosion of humanitarian restraint One of the most structural effects of drone warfare is the geographical and psychological separation between operator and battlefield. Drone crews conduct hostilities from secure locations far removed from the conflict zone, eliminating reciprocal physical risk.79 This redistribution of danger from combatant to civilian has been conceptualised as risktransfer warfare.80 This transformation affects proportionality in two principal ways. 1. Skewed subjectivity and lowered thresholds Proportionality assessments are inherently judgment-based. In conventional warfare, that judgment is conditioned by reciprocal vulnerability: operations endangering one’s own forces demand strong military justification.81 Drone warfare removes that moderating factor. Where force can be applied without personal risk, restraint becomes structurally weaker. 82 Although force protection remains lawful, the absence of risk alters the cost-benefit calculus underpinning proportionality.83 When low-risk options exist, incentives shift toward using force to obtain marginal tactical advantages. 84 The threshold of tolerated civilian harm may therefore be unintentionally lowered despite the legal test remaining formally unchanged.85 2. Dilution of military advantage Drone operations enable frequent strikes against low-level fighters who are lawful targets yet provide limited operational value. ICTY jurisprudence confirms that eliminating individual combatants, particularly of low rank, usually confers a relatively slight military advantage when weighed against civilian risk. 86 Drone warfare distorts this calculus by removing the cost associated with personnel danger. Attacks that would previously have been inefficient or disproportionate become operationally attractive simply because they are safe for the attacker. 87 The resulting increase 78

Yves Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (ICRC 1987) 680–702 (art 57). 79 Grégoire Chamayou, A Theory of the Drone (Janet Lloyd tr, New Press 2015). 80 Chamayou (n 79) 52–57. 81 Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (3rd edn, Cambridge University Press 2016) 120–123. 82 Chamayou (n 79) 89–92. 83 Dinstein (n 81). 84 Boyle (n 69) 9–13. 85 Schmitt (n 63) 347. 86 Prosecutor v Galić (Judgment) IT-98-29-T (ICTY, Trial Chamber, 5 December 2003) para 58. 87 Chamayou (n 79) ch 5.

in low-value, high-frequency strikes illustrates not military necessity in action but its inversion: force is employed because it is easy, not because it is essential. 88 C) Algorithmic Opacity and the Accountability Gap The incorporation of artificial intelligence (AI) into drone targeting introduces a further doctrinal challenge. Automated systems increasingly shape target nomination, threat evaluation, and casualty estimation. While offering efficiency, they also embed decisionmaking inside opaque technical processes that frustrate legal scrutiny. 89 1. Failure of proportionality judgment Proportionality requires contextual evaluation: it demands understanding of civilian activity, infrastructure interdependence, and humanitarian conditions.90 Machine-learning models process patterns, not meaning. When deployed in dynamic conflicts, algorithmic outputs may exhibit deceptive precision while remaining structurally unreliable. 91 This has legal consequences. Proportionality is not a statistical exercise but a normative judgment.92 Where command decisions defer heavily to algorithmic assessments, a commander’s capacity to interrogate or override flawed outputs is weakened. 93 Errors in bias, data quality, or model assumptions, therefore, magnify the risk of disproportionate attacks.94 2. Erosion of Meaningful Human Control (MHC) Although the state remains responsible for all operations of its armed forces, autonomy complicates individual accountability. 95 The problem is not attribution in state responsibility but opacity in individual decision-making.96 Where technical systems dominate the targeting process, human involvement may collapse into formal approval rather than substantive judgment. 97 After-action review becomes impossible where no human can explain how a result was produced. This undermines procedural safeguards central to lawful targeting, even if state responsibility remains intact. 98

ibid 101–105. Merel Ekelhof and Giacomo Persi Paoli, The Human Element in Decisions about the Use of Force (UNIDIR 2020). 90 Laurent Gisel (ed), The Principle of Proportionality in the Rules Governing the Conduct of Hostilities under International Humanitarian Law (International Expert Meeting, Quebec, 22–23 June 2016, ICRC 2018). 91 Paul Scharre, Army of None: Autonomous Weapons and the Future of War (W W Norton 2018) ch 7. 92 Dinstein (n 81). 93 Schmitt and Thurnher (n 61). 94 Ekelhof and Persi Paoli (n 89). 95 International Law Commission, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts’ in Report of the International Law Commission on the Work of its Fifty-third Session (2001) UN Doc A/56/10, ch IV.E.1, art 4; see also UNGA Res 56/83 (28 January 2002) annex. 96 Davison (n 66). 97 Scharre (n 91) 207–211. 98 Davison (n 66). 89

3. Attribution and responsibility Autonomous systems cannot themselves bear responsibility; attribution lies with the state.99 Individual criminal liability arises through the doctrine of command responsibility where commanders fail to supervise, intervene, or correct system misuse. 100 Emerging scholarship refers to a standard of dynamic diligence: commanders must continuously verify system performance, audit outputs, and suspend automation where legal risk arises.101 Failure to maintain system interpretability or legal control may itself constitute culpable omission.102 It is here that Meaningful Human Control emerges not as technical policy but as a legal necessity to preserve accountability. 103 IV.

Gaza: A case study in structural failure The Gaza Strip, with a population of approximately 2.1–2.2 million within an area of

about 365 km² prior to the current hostilities, is among the most densely populated territories in the world.104 In such an environment, civilian life-support systems and military objectives are physically and functionally intertwined, intensifying the humanitarian consequences of aerial warfare.105 While precise figures relating to infrastructure damage and civilian conditions vary across sources and are difficult to independently verify due to access restrictions on international observers, the convergence of reporting by United Nations agencies, humanitarian organisations, and independent investigation mechanisms indicates a pattern of widespread and systematic destruction. 106 In this context, the extensive use of drone surveillance, algorithmassisted targeting, and explosive weapons in populated areas provides a compelling empirical basis for assessing whether a legal framework constructed around attack-by-attack proportionality assessments can regulate prolonged, technologically mediated campaigns. 107

ILC (n 95). Prosecutor v Delalić (Čelebići) (Judgment) IT-96-21-T (ICTY, Trial Chamber, 16 November 1998). 101 Rebecca Crootof, ‘War, Responsibility, and Killer Robots’ (2015) 40 North Carolina Journal of International Law and Commercial Regulation 909. 102 ibid. 103 ICRC, ‘Autonomous weapons: operationalizing meaningful human control’ (Humanitarian Law & Policy Blog, 15 August 2018) <https://blogs.icrc.org/law-and-policy/2018/08/15/autonomous-weapons-operationalizingmeaningful-human-control/\> accessed 1 December 2025. 104 Palestinian Central Bureau of Statistics, Population, Housing and Establishments Census 2017: Main Results (PCBS 2018); UN Office for the Coordination of Humanitarian Affairs (UN OCHA), Humanitarian Needs Overview: Occupied Palestinian Territory 2023 (OCHA 2023). 105 International Committee of the Red Cross (ICRC), International Humanitarian Law and the Challenges of Contemporary Armed Conflicts: Building a Culture of Compliance for IHL to Protect Humanity in Today’s and Future Conflicts (ICRC 2024) 42–53. 106 UN OCHA, ‘Gaza Strip: Humanitarian Situation Reports’ (Situation Reports, 2023–24); Office of the United Nations High Commissioner for Human Rights (OHCHR), ‘Gaza: Update on the Human Rights Situation in the Occupied Palestinian Territory’ (Report, 2024). 107 UN OCHA (n 106). 100

The magnitude and persistence of destruction reported since October 2023 raise serious doubts as to whether the proportionality doctrine, as presently applied, can capture the cumulative humanitarian consequences of drone warfare in dense urban settings.108 A) Failure to Account for Cumulative Harm The proportionality rule evaluates each strike as a legally autonomous event rather than as part of an aggregated campaign. 109 This structure, developed for conventional hostilities characterised by episodic engagements, becomes increasingly inadequate in the context of persistent drone operations conducted over extended periods. Drone warfare permits continuous low-intensity strikes that may individually appear lawful but collectively undermine civilians’ ability to survive. The limitation is therefore not incidental but structural: IHL does not contain a doctrinal mechanism for aggregating harm across attacks, even where the cumulative impact is foreseeable and devastating.110 In Gaza, the sustained character of aerial operations illustrates this defect. Recurrent strikes on infrastructure over months generate consequences that individual incidents do not reveal in isolation but which, taken together, produce systemic collapse. 111 The resulting damage is not merely incidental but progressively destructive. This exposes a temporal blind spot in proportionality: a framework that may validate each event in isolation yet fails to capture the destructive logic of sustained campaigns. 1. The Systematic Erosion of Life-Support United Nations agencies, humanitarian organisations, and international monitoring bodies consistently describe extensive damage to Gaza’s civilian infrastructure. 112 Although damage assessments differ, the severity and scale of destruction to essential services have been widely documented as extreme. 113 The effects are foreseeable, measurable, and legally relevant under IHL. (a) WASH and energy collapse

108

OHCHR (n 106). Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, vol I: Rules (CUP 2005) Rule 14. 110 ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts (n 2) 15–17. 111 UN OCHA (n 106). 112 OHCHR (n 106); United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA), ‘Situation Report on the Humanitarian Crisis in the Gaza Strip and the Occupied West Bank, including East Jerusalem’ (various reports, 2023–24). 113 UNRWA (n 112). 109

Military operations have critically impaired electricity supply, fuel access, and water infrastructure, undermining Gaza’s water, sanitation, and hygiene (WASH) systems. 114 Reports document damage to wastewater treatment plants, pumping stations, and electricity grids, with resulting discharge of untreated sewage and a severe reduction in access to clean water. 115 Hospitals reported power shortages and loss of medical functionality, while access to potable water dropped to critically low levels. 116 From a proportionality perspective, these consequences cannot be dismissed as collateral. The predictable loss of access to water, sanitation, and medical care must be integrated into the ex ante assessment of incidental harm. When destruction foreseeably disables systems essential to civilian survival, proportionality cannot be confined to blast radius and immediate casualties alone. (b) Targeting economic survival Food production and distribution systems were also severely affected. Agricultural lands, bakeries, and supply routes sustained repeated damage, and humanitarian agencies reported catastrophic levels of food insecurity across the population. 117 This harm is legally relevant not simply as economic loss but as existential deprivation. The foreseeability of famine elevates the humanitarian weight of the destruction beyond property damage. Proportionality requires destruction leading to population-level deprivation to be assessed more severely than isolated material loss. The United Nations Commission of Inquiry on the Occupied Palestinian Territory emphasised that widespread destruction rendering neighbourhoods uninhabitable engages the principles of distinction and military necessity. 118 Viewed through proportionality, the cumulative degradation of civilian life-support systems reveals a doctrinal weakness: the framework addresses attacks individually but struggles to regulate campaigns structurally. B) Command responsibility and the verification deficit

114

Human Rights Watch, Extermination and Acts of Genocide: Israel Deliberately Depriving Palestinians in Gaza of Water (HRW 2024). 115 UN OCHA (n 106). 116 World Health Organization, ‘oPt Emergency Situation Updates’ (2023–24); United Nations Children’s Fund (UNICEF), ‘Gaza Emergency WASH Updates’ (2023–24). 117 Food and Agriculture Organization of the United Nations and World Food Programme, Hunger Hotspots: FAO– WFP Early Warnings on Acute Food Insecurity – November 2023 to April 2024 Outlook (FAO/WFP 2023). 118 Human Rights Council, Report of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel UN Doc A/HRC/56/26 (14 June 2024).

Proportionality obligations do not end with strike authorisation; meaningful review is essential. In Gaza, this safeguard has been undermined by reliance on automated targeting tools and the absence of transparency surrounding targeting procedures. 119 Investigative reporting indicates that Israeli forces employed algorithm-assisted systems, including Habsora (“The Gospel”) and Lavender, to generate targets at scale. 120 While these systems increase operational tempo, they strain compliance with Article 57 AP I, which requires commanders to take “all feasible precautions.”121 The volume and speed of attack authorisations impede effective oversight and undermine verification. 1. Obstruction of Inquiry The Commission of Inquiry reported major obstacles in securing access to targeting procedures and operational information. 122 Without access, an independent review of proportionality is effectively impossible. Accountability becomes theoretical rather than judicial. 2. Loss of Precautions Established warning practices, including “roof-knocking”, were reportedly curtailed in multiple operations.123 In densely populated environments, removal of warnings substantially heightens the foreseeability of civilian harm. In addition, reports of unguided munitions used alongside precision weapons undermine claims that advanced technology ensured compliance with precaution obligations.124 Strikes in civilian camps and urban neighbourhoods illustrate how technological superiority cannot substitute for legal restraint. 125 C) Conclusion of the Case Study The situation in Gaza highlights the difficulties of applying the proportionality principle in prolonged, technology-driven conflict within densely populated areas. Although drone warfare is often associated with improved precision, its operational features, such as persistence, automation, and urban deployment, complicate proportionality assessments rather than resolving them.

119

ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts (n 105). Yuval Abraham, ‘“Lavender”: The AI Machine Directing Israel’s Bombing of Gaza’ +972 Magazine (3 April 2024). 121 Protocol Additional (I) to the Geneva Conventions of 12 August 1949 (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3, art 57; Henckaerts and Doswald-Beck (n 6) Rules 15–21. 122 Human Rights Council (n 118). 123 Amnesty International, ‘Israel/OPT: Israeli Air Strikes that Killed 44 Civilians Further Evidence of War Crimes – New Investigation’ (27 May 2024). 124 Human Rights Watch (n 114). 125 OHCHR (n 106). 120

This case does not demonstrate inherent illegality, but it does suggest limitations in the existing legal framework when addressing cumulative harm and complex targeting environments. Gaza, therefore, serves as a practical illustration of the challenges faced by IHL in adapting the proportionality principle to contemporary forms of warfare. V.

Rethinking Proportionality in the Drone Age The preceding analysis indicates that contemporary drone warfare, as illustrated by the

Gaza case study, exposes limitations in the way proportionality is presently conceptualised and applied. While drone technology is often framed as a technical innovation, the resulting challenge is primarily doctrinal: proportionality was devised for episodic hostilities characterised by discrete attacks and reciprocal danger, whereas drone warfare is continuous, asymmetric, and increasingly automated. 126 As a result, the existing framework risks losing alignment with operational reality. The continued credibility of IHL, therefore, depends on recalibration, from an episodic model toward a framework capable of addressing cumulative harm, reconfigured risk, and algorithmic mediation. 127 A) Integrating Cumulative Harm: Establishing a Structural Threshold A central weakness revealed by drone warfare is proportionality’s reliance on attackby-attack assessment. This structure permits strikes to be evaluated independently, even where their combined effect is foreseeable, continuous, and destructive. 128 Lawful when viewed in isolation, strikes may collectively undermine civilian survival without triggering legal violation. This deficit is temporal rather than incidental. Addressing this deficiency does not require treaty amendment: doctrinal development through interpretation and judicial reasoning has historically driven IHL evolution. 129 1. Formalising the “Zone of Collapse” The notion of a “zone of collapse” captures situations where cumulative infrastructural degradation renders civilian life unsustainable. While IHL does not articulate this concept, functional collapse is not foreign to its logic. (a) Expanded definition of harm

126

Michael N Schmitt, ‘Precision Attack and International Humanitarian Law’ (2005) 87 International Review of the Red Cross 445. 127 ICRC, International Humanitarian Law and the Challenges of Contemporary Armed Conflicts: Building a Culture of Compliance for IHL to Protect Humanity in Today’s and Future Conflicts (ICRC 2024) 15–21. 128 Françoise J Hampson, ‘The Principle of Proportionality in the Law of Armed Conflict’ in Sarah Perrigo and Jim Whitman (eds), The Geneva Conventions under Assault (Pluto Press 2010) 42–73. 129 ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff 1987) para 2204; Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (3rd edn, CUP 2016) ch 6.

IHL already recognises foreseeable indirect effects as legally relevant. However, practice prioritises blast impact and casualty figures over structural disruption. The proposal is therefore not to redefine harm, but to enforce more consistent consideration of secondary effects, including damage to water, power, healthcare, and shelter, in proportionality evaluations.130 (b) Adopting an aggregate metric The development of an internal Cumulative Damage Metric (CDM) would merely systematise information commanders already possess, including damage to infrastructure and civilian resilience. While IHL rejects purely economic balancing, current legal doctrine emphasises functional significance over financial valuation. 131 A CDM would support rather than replace human judgment. (c) Structural threshold Where operational conduct disables essential systems at scale, such effects could generate a rebuttable presumption of disproportionality for further strikes on equivalent targets. Proportionality already incorporates reasonableness and foreseeability; a structural threshold would formalise those principles as a doctrine of cumulative assessment. 132 B) Procedural Reform to Mitigate Bias and Opacity Drone warfare introduces two procedural distortions: risk asymmetry and algorithmic mediation. These features do not alter the legal standard but compromise its application. 1. Countering the Risk-Transfer Bias Command responsibility does not require self-sacrifice, but total risk elimination changes operational incentives. Scholars have described this reallocation as risk-transfer warfare: civilian danger replaces military exposure. 133 (a) Risk justification requirement IHL demands military necessity, not minimum danger to one’s own forces. Where lowrisk operational choices impose foreseeably greater civilian harm, justification should become an explicit element of proportionality review. 134 (b) External humanitarian vetting 130

Emanuela-Chiara Gillard, Proportionality in the Conduct of Hostilities: The Incidental Harm Side of the Assessment (Chatham House 2018) 22–30. 131 Wolff Heintschel von Heinegg, ‘Proportionality and Collateral Damage’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP online edn, 2015) paras 12–18. 132 Michael Bothe, Karl Josef Partsch and Waldemar A Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (2nd edn, Brill 2013) 293–296. 133 Grégoire Chamayou, A Theory of the Drone (Janet Lloyd tr, The New Press 2015). 134 Dinstein (n 129) 122–124.

The incorporation of independent legal advisors belongs to military best practice, not rule creation. Professionalisation of proportionality review through legal embedding has been endorsed institutionally and academically. 135 2. Enforcing Transparency for Algorithmic Targeting Autonomous tools complicate compliance not by altering obligation but by reducing visibility. (a) Algorithmic certification States retain discretion over weapons, but international technical scrutiny has long applied to weapons legality. Algorithmic review would replicate conventional weapons legal review under Article 36 AP I.136 (b) Public audit trails Transparency supports reviewability. Declassified summaries of targeting procedures have historically operated as evidentiary tools in accountability processes. 137 C) Ensuring Human Control and Legal Accountability Human agency is foundational to IHL. Autonomous systems do not displace responsibility; they complicate it. 138 First, proportionality is not computable. Excessiveness requires normative judgment. Systems that auto-balance military advantage and harm displace a non-delegable human duty.139 Second, human intervention is mandatory where algorithmic uncertainty is high. State responsibility remains intact regardless of automation. 140 1. Strengthening Command Responsibility The doctrine already covers foreseeable violations. Its application to autonomous environments requires clarification, not extension. (a) Dynamic diligence

135

William H Boothby, Weapons and the Law of Armed Conflict (2nd edn, OUP 2016) ch 4. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3, art 36; ICRC, A Guide to the Legal Review of New Weapons, Means and Methods of Warfare: Measures to Implement Article 36 of Additional Protocol I of 1977 (ICRC 2006). 137 Prosecutor v Galić (Judgment) IT-98-29-T (ICTY, 5 December 2003) para 58. 138 Neil Davison, ‘A Legal Perspective: Autonomous Weapon Systems under International Humanitarian Law’ in UNODA, Perspectives on Lethal Autonomous Weapon Systems (UNODA Occasional Papers No 30, 2017). 139 Dinstein (n 129) ch 6. 140 International Law Commission, ‘Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries’ in Report of the International Law Commission on the Work of its Fifty-Third Session UN GAOR 56th Session Supp No 10 (A/56/10) 43, art 4. 136

Command responsibility evolves with capability. Where commanders oversee learning systems, due diligence includes data audits, performance monitoring, and override mechanisms.141 (b) Procedural liability International criminal doctrine extends responsibility to omission. Failure to structure lawful decision-making may constitute culpable conduct even absent demonstrable excess casualties.142 VI.

Conclusion

A significant structural shortcoming in International Humanitarian Law (IHL) is revealed by the application of the proportionality principle in modern warfare, particularly in conflicts characterised by extensive reliance on drone technology. The difficulty arises from a mismatch between an operational reality increasingly defined by remote, continuous, and partially autonomous warfare, and a legal framework originally developed for battlefields shaped by reciprocal risk and direct human involvement. When applied to a mode of warfare marked by endurance, automation, and distance, proportionality, designed to balance military necessity against civilian harm in temporally discrete moments, struggles to regulate the harm produced by contemporary hostilities. The temporal rigidity of the law lies at the core of this challenge. Article 51(5)(b) of Additional Protocol I formulates proportionality as an attack-specific rule, requiring each strike to be assessed in isolation. This model becomes strained in contexts where military operations are conducted over extended periods through numerous discrete yet operationally interconnected strikes. In such circumstances, damage to civilian infrastructure, water access, energy supply, sanitation, and medical services accumulates gradually, even though no single attack may exceed the legal threshold of disproportionality. The result is a framework that may remain legally intact at the micro level while failing to address harm unfolding at the macro level. The removal of reciprocal risk in drone warfare further complicates this picture. When operators and commanders are physically insulated from harm, the moral and psychological conditions underpinning proportionality assessments are altered. While IHL does not require combatants to assume personal risk, the absence of vulnerability affects how restraint is

141

Rebecca Crootof, ‘War, Responsibility, and Killer Robots’ (2015) 40 North Carolina Journal of International Law and Commercial Regulation 909. 142 Prosecutor v Delalić (Čelebići) (Judgment) IT-96-21-T (ICTY, 16 November 1998).

exercised in practice. The phenomenon commonly described as risk-transfer bias may lower the practical threshold of acceptable harm, thereby challenging the law’s capacity to preserve the humanitarian balance it seeks to uphold. This raises not simply operational concerns, but interpretive ones: whether and how IHL can be applied in a manner that offsets the moral asymmetry created by remote warfare remains an open question. These difficulties are intensified by the growing use of artificial intelligence and algorithmic targeting systems. Automated prioritisation and data-driven decision support introduce procedural opacity into what has traditionally been a human, legally accountable process. Where decision pathways are technologically complex and non-transparent, independent legal review becomes more difficult, and proportionality risks losing its function as a scrutinised safeguard. Without interpretability and traceability, proportionality assessments may become increasingly difficult to evaluate, thereby weakening their role within the accountability structure of IHL. Addressing these challenges does not require abandoning proportionality, but refining it. IHL may need to develop interpretive and procedural tools that enable cumulative harm to be considered across the duration of a campaign rather than on a purely episodic basis. Proposals such as a Cumulative Damage Metric (CDM) illustrate one possible avenue for conceptual development, while algorithmic oversight mechanisms may improve reviewability rather than alter attribution. Likewise, strengthening the notion of “dynamic diligence” within command responsibility may help preserve meaningful oversight without displacing established legal principles. Drone warfare, therefore, does not signal the collapse of IHL, but it tests its adaptability. If proportionality is to retain its relevance as a legal and moral safeguard, it must be interpreted in a manner that reflects the realities of technologically mediated conflict. The humanitarian purpose of IHL, to limit suffering in war, depends not on static rules, but on the law’s capacity to evolve with the methods of warfare it seeks to regulate.