International armed conflicts are unfortunate realities that occur every day around the world, with civilians frequently bearing the brunt of the damage. After the attacks, the attackers often tend to justify their actions by invoking the right to self-defence and the need to ensure their own security. For example, in the recent India–Pakistan war, India’s Defence Minister Rajnath Singh stated that his government had exercised its “right to respond” following the terrorist attack in Kashmir. In fact, even more concerningly, world superpowers have also justified attacks under the legal framework of self-defence. On June 15, 2025, Australian Foreign Minister Penny Wong stated: “Israel has a right to self-defence.” The principle of self-defence is a valid ground for conducting an attack, provided it is exercised reasonably, in accordance with Article 31(1)(c) of the Rome Statute of the ICC. But, intentionally launching disproportionate attacks has become increasingly common, which constitutes a clear violation of the Rome Statute under Article 8(2)(b)(iv). Article 8(2)(b)(iv) of the Rome Statute states that:
“Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”
The ICC defines this title as the “War crime of excessive incidental death, injury, or damage”. This war crime has five elements: (1) there was an attack, (2) the attack was likely to cause civilian deaths or injuries, damage civilian property, or cause serious environmental harm, and the harm was clearly excessive compared to the expected military advantage, (3) the attacker intended to carry out the attack, (4) it occurred during an international armed conflict, and (5) the attacker was aware of the circumstances that constituted the armed conflict.
The ICC notes in its judgment that, in assessing whether a war crime has occurred, factors such as the types of weapons used, their deployment, the nature of the target, availability of alternative weapons, and the proximity of civilian homes to military objectives are considered. In reality, there is a massive and widespread use of lethal weapons. For instance, in the Ukraine-Russia war, Short-Range Drones (FPV and Lancet-type), Aerial Bombs (glide and unguided variants), and Cruise and Ballistic Missiles (X-101, Iskander-M) have been used extensively.
Jus ad bellum and Jus ad bellum are two important concepts in International criminal law. Jus ad bellum defines the circumstances in which a State may resort to force, whereas jus in bello regulates the manner in which that force is employed during conflict. Disproportionate attacks cannot even be justified as lawful measures of self-defence under jus ad bellum. While the laws of armed conflict do not explicitly prohibit attacks on towns or cities, such actions are permissible only if they target military objectives and are not disproportionate.
Article 48 of Additional Protocol I requires parties to a conflict to distinguish at all times between civilians and combatants. This is referred to as the principle of distinction, the foundational premise upon which the codification of the laws and customs of war is based. Additionally, the Chamber in The Prosecutor v. Alfred Yekatom and Patrice-Edouard Ngaïssona found that giving explicit instructions to attack areas identified by the presence of a religious group, leading fighters to target civilians without distinction, amounted to an unlawful order under international law. In another landmark case, Prosecutor v. Bosco Ntaganda, the court held that the inability to distinguish between combatants and civilians can never justify an attack. However, if civilian objects are consistently used for dual purposes, they may lose their protected status. The court in Prosecutor v. Pavle Strugar case held that protected buildings lose their protection if they become military objectives.
Nevertheless, this judgment alone does not legitimise targeting civilians or civilian infrastructure without valid proof. Whenever there is any doubt about whether someone is a civilian, they must be treated as a civilian. This was stated in Prosecutor v Kunarac case. According to the UN Human Rights Office, the Israel Defence Force’s strike on Al Awda Hospital raises serious questions regarding compliance with international humanitarian law and the principle of distinction.
An important question arises regarding what legal frameworks must be adhered to in order to ensure that civilians and civilian objects are not harmed during armed conflict. This framework is known as the principle of precaution. According to Article 57(2)(ii) of the Additional Protocol 1, parties to a conflict are required to take all feasible precautions when selecting the means and methods of attack in order to avoid and, in any event, minimise incidental civilian deaths, injuries, and damage to civilian objects. The Chamber in the Karadžić case established that the presence of a few soldiers within a civilian group does not alter the civilian character of that group. A mere claim of having taken precautions should never be considered sufficient justification. Even when military necessity exists, it must be ensured that civilians have a genuine opportunity to evacuate. For instance, distributing leaflets or sending SMS alerts without providing a formal evacuation corridor does not satisfy any principle of precaution.
A common assertion following attacks on civilian objects is that there was no intent to target them. Intent is a crucial element of the crime described under Article 8(2)(b)(iv) of the Rome Statute. In the view of Article 30(2) of the Rome Statute, the intent of a crime is understood in two ways: first, when a person deliberately chooses to engage in the conduct; and second, when the person either intends the consequence to occur or knows that it will occur in the normal course of events. According to the Elements of the Crimes, the accused is not required to know all characteristics or the full plan of the attack; it is sufficient that they were aware of an attack on civilians and that, even in its early stages, they acted with the intent to contribute to its advancement. To establish the mens rea, or the mental element of a crime, the perpetrator must be aware that an attack on the civilian population is occurring and that their actions contribute to that attack.
Article 8(2)(b)(iv) applies only to the international armed conflict. According to many international cases, an armed conflict is considered international when it occurs between two or more States, including situations where one State partially or fully occupies the territory of another, whether or not that occupation is met with armed resistance. In addition, the court in Prosecutor v Katanga case, an internal armed conflict that breaks out on the territory of a State may become international or be international simultaneously with an internal armed conflict, if another State intervenes in that conflict through its troops as direct intervention. However, disproportionate attacks and other war crimes in non-international armed conflicts are also prohibited under multiple provisions of international law.
Designing actions in war, even within legal frameworks, is in itself a vague approach to moralising it. War, by its very nature, is one of the most destructive and chaotic acts on earth. Nevertheless, these frameworks exist to prevent civilian deaths and damage to civilian objects, serving as a form of legal protection for victims. Concerns about their applicability due to global political dynamics remain, but who can deny that having some rules is better than having none?
