Defences to State Responsibility in International Humanitarian Law

The ILC Articles on State Responsibility contain six general defences: consent, self-defence, countermeasures, force majeure, distress and state of necessity. These defences are, in principle, applicable to the whole range of obligations of States under international law—regardless of their source, character, or addressees—and are therefore at least potentially applicable in respect of obligations under international humanitarian law. In this chapter we argue that, other than force majeure, the defences in the law of responsibility are not applicable to the breach of IHL obligations. There are a variety of reasons for this, which reflect the material scope of the ARS defences and the particularities of the armed conflict context and IHL. Indeed in some cases, IHL may be seen as an actualisation of the concern that is addressed by the general defences, leaving them no further role to play within IHL. In respect of force majeure, which is available as a defence in respect of (certain) IHL breaches, we argue that States are obliged to ensure that their conduct in the circumstances respects the object and purpose of IHL as far as this is possible.