oa Comparative and International Law Journal of Southern Africa - Geneva under siege

Volume 37, Issue 3
  • ISSN : 0010-4051



In this article I examine the justifications offered by legal advisors to the military in two controversial incidents that arose in recent conflicts: targeting television stations which are used to broadcast war propaganda; and broadcasting the images of prisoners of war (POWs) on television. In doing so, I draw on the uncontroversial principles that form the foundations of international humanitarian law: distinction, military necessity and proportionality. These principles, enshrined in the 'Martens clause', have achieved customary status and are binding upon all belligerents. The discussion begins with a brief overview of these three foundational principles. I then turn to the incidents and explore what existing treaty law may have to say on the subject (whether or not it is binding qua treaty law on the belligerent parties involved). I conclude by probing the foundational principles and the existing body of customary humanitarian law (as reflected in public opinion and opinio juris) and exploring the insights they might offer.

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