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Precautions Under the Law Governing the Conduct of Hostilities Jean-Franc¸Ois Que´Guiner* Jean-Franc¸Ois Que´Guiner Is Legal Adviser in the Legal Division of the ICRC

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Precautions Under the Law Governing the Conduct of Hostilities Jean-Franc¸Ois Que´Guiner* Jean-Franc¸Ois Que´Guiner Is Legal Adviser in the Legal Division of the ICRC Volume 88 Number 864 December 2006 Precautions under the law governing the conduct of hostilities Jean-Franc¸ois Que´guiner* Jean-Franc¸ois Que´guiner is Legal Adviser in the Legal Division of the ICRC. Abstract This article presents a descriptive analysis of the precautions that are required of all belligerents in order to ensure the protection of civilian populations and objects against the effects of hostilities. The author argues that both the attacker and the defender must take precautions to avoid, or at least minimize, collateral casualties and damage. The rules imposing such precautionary measures represent clear standards of conduct. This is true even though they are worded in flexible terms to take into account the reality that mistakes or misjudgements are inevitable, and that the balance between military and humanitarian interests is not always easy to reach. Respect for civilian persons and objects and protecting them against the effects of hostilities is an important raison d’eˆtre of international humanitarian law (IHL). The basic rule – enshrined in Article 48 of Additional Protocol I to the Geneva Conventions – requires that parties to a conflict distinguish between civilian persons and objects on the one hand, and combatants and military objectives on the other, and that they direct their operations against military objectives (persons or objects) only. A number of concrete obligations can be derived from this general principle of distinction, such as the prohibition of direct attacks against civilian * This contribution reflects the views of the author, and not necessarily those of the ICRC. It is based on an updated and translated chapter in the author’s doctoral thesis, ‘‘Le principe de distinction dans la conduite des hostilite´s – Un principe traditionnel confronte´ a` des de´fis actuels’’, The`se n˚706, Universite´ de Gene`ve, Institut universitaire des Hautes E´ tudes internationales, Gene`ve, 2006, 493 pp. The author would like to thank Nathalie Weizmann, ICRC Legal Division, for revising the text and providing many useful substantive comments. 793 J-F. Que´guiner – Precautions under the law governing the conduct of hostilities persons and objects1 and the prohibition of acts or threats of violence the primary purpose of which is to spread terror among the civilian population.2 Similarly, indiscriminate attacks are also prohibited. These are attacks that are not or cannot be directed at a specific military objective, as well as those whose intended effects cannot be limited as required by IHL.3 However, it remains legally accepted that, in the harsh reality of war, civilian persons and objects may be incidentally affected by an attack directed at a legitimate military objective. Euphemistically referred to as ‘‘collateral casualties’’ or ‘‘collateral damage’’,4 civilians may be victims of mistaken target identification or of unintended but inevitable side effects of an attack on a legitimate target in their vicinity. According to the principle of proportionality, these collateral casualties and damages are lawful under treaty and customary law only if they are not excessive in relation to the concrete and direct military advantage anticipated.5 In addition, even when a lawful attack is launched, precautionary measures are required of both the attacking party and the party being attacked, in order to avoid (or at least to minimize) the collateral effects of hostilities on civilian persons, the civilian population and civilian objects. The present contribution will focus on the substance of the precautionary obligations required of all belligerents – both in attack and against the effects of attack – as codified in Additional Protocol I.6 This article will seek to demonstrate that these rules are not simply hortatory norms encouraging good practice. They constitute obligatory standards of conduct whose violation would entail international responsibility. 1 The fact that, in principle, civilian and other protected persons or objects may not be attacked does not preclude this legal protection from ceasing under exceptional circumstances. 2 See, in particular, Articles 51(2) and 52(2) of Additional Protocol I to the Geneva Conventions. 3 Article 51(4) Additional Protocol I. 4 ‘‘Collateral casualties’’ and ‘‘collateral damage’’ are defined in Rule 13(c) of the San Remo Manual on International Law Applicable to Armed Conflicts at Sea as ‘‘the loss of life of, or injury to, civilians or other protected persons, and damage to or the destruction of the natural environment or objects that are not in themselves military objectives’’. 5 Codified in Article 51(5)(b) of Additional Protocol I, the principle of proportionality encompasses more than the duty to take precautions in attack. It is, however, relevant in this context, as illustrated by Article 57(2)(a)(iii). Since the difficulties in applying this principle are discussed at length in a separate contribution to this volume (see Enzo Cannizzaro, ‘‘Contextualising proportionality: ius ad bellum and ius in bello in the Lebanese war’’, pp. 779–792), a detailed analysis of this precautionary measure will not be made here. 6 In accordance with the scope of application of Additional Protocol I set forth in Article 49(3), the present contribution will focus only on the protection of civilian persons and objects on land, excluding precautions required in naval or air warfare. In this respect, Article 57(4) of Additional Protocol I simply indicates that ‘‘In the conduct of military operations at sea or in the air, each Party to the conflict shall … take all reasonable precautions to avoid losses of civilian lives and damage to civilian objects.’’ Customary international humanitarian law certainly prescribes more detailed precautionary measures to be adopted, but an analysis of these measures exceeds the scope of this contribution. 794 Volume 88 Number 864 December 2006 Precautions in attack While the duty to give warning of an impending attack (in order to allow the civilian population to evacuate) was stipulated in the earliest treaties on the law of armed conflict, the general obligation to take precautions in attack was codified rather late.7 In fact, before Additional Protocol I was adopted, the doctrine stating that the obligation to take precautions was binding on all attacking commanders was based on a broad interpretation of the 1899 and 1907 Hague Conventions and 1949 Geneva Conventions, and on customary rules. Thus when the delegates who attended the 1974–7 Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts prepared a written list of the required precautions, they made an undeniably valuable contribution to the law governing the conduct of hostilities. The legal regime governing precautions in attack during an international armed conflict is set out in Article 57 of Additional Protocol I. This article is not the only treaty provision setting out the precautions required of an attacker. A number of treaties governing the use of specific weapons also cover the duty to take precautionary measures, although these instruments merely apply pre- existing Additional Protocol I obligations to specific means of warfare. In drawing up a (non-exhaustive) list of the precautions required during an attack, it is therefore reasonable to rely on Article 57 of Additional Protocol I as a primary source. Below is a descriptive review of these precautions, with brief concluding remarks on how these are limited to what is ‘‘feasible’’. Inventory of the precautionary obligations incumbent on the attacker Article 57 reads as follows: 1. In the conduct of military operations, constant care shall be taken to spare the civilian population, civilians and civilian objects. 2. With respect to attacks, the following precautions shall be taken: (a) those who plan or decide upon an attack shall: (i) do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and are not subject to special protection but are military objectives within the meaning of paragraph 2 of Article 52 and that it is not prohibited by the provisions of this Protocol to attack them; (ii) (ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, 7 In the report prepared for the 1971 Conference of Government Experts, the ICRC noted that the obligation to take precautions in attack ‘‘has been affirmed by publicists for a long time, but without being expressed in a very precise manner in the provisions of international law in force’’. 795 J-F. Que´guiner – Precautions under the law governing the conduct of hostilities incidental loss or civilian life, injury to civilians and damage to civilian objects; (iii) refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be exces- sive in relation to the concrete and direct military advantage anticipated; (b) an attack shall be cancelled or suspended if it becomes apparent that the objective is not a military one or is subject to special protection or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated; (c) effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit. 3. When a choice is possible between several military objectives for obtaining a similar military advantage, the objective to be selected shall be that the attack on which may be expected to cause the least danger to civilian lives and to civilian objects. The obligation to take constant care to spare the civilian population, civilians, and civilian objects in the conduct of military operations The obligation, in the conduct of military operations, to take constant care to spare the civilian population, individual civilians and civilian objects is a direct consequence of the fundamental rule of distinction.
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